COVID-19 Vaccinations In The Workplace – Employer Obligations

Published February 21, 2021 (last updated January 25, 2022) -

As the COVID-19 vaccine starts to rollout across Australia, business owners seeking to have their employees vaccinated over the coming months need to be aware of their workplace vaccination rights, responsibilities and options.

The Morrison Government has confirmed the vaccine will not be made mandatory at a federal level. As it stands, an employer cannot force an employee to get the jab. State and Territory Governments may introduce requirements for employees to receive a vaccination in specific circumstances.

While there are no current legislative or regulatory requirements which either permit or prohibit employers to direct employees to receive a COVID-19 vaccination, doing nothing will not satisfy their health and safety duties.

“An employer has a duty to do everything reasonably practicable to reduce health and safety risks in the workplace”, said Emma Dawson, Business Partner of Employsure, Australia’s largest workplace relations advisor to more than 28,000 small and medium-sized enterprises.

“Existing infection control measures, such as physical distancing, routine environmental cleaning, and the use of hand-sanitiser and personal protective equipment may be satisfactory to meet health and safety obligations without requiring employees to get vaccinated.

“Business owners should consider introducing a detailed infection control policy which addresses vaccinations and an immunisation program.”

In Australia, an employer can give directions which are lawful and reasonable. To establish if directing an employee to get the COVID-19 vaccine is lawful and reasonable, the employer must consider:

  • Is there a realistic or high risk of infection in the workplace?
  • Are employees working in an environment prone to infection spread?
  • Can other measures be introduced to reduce the risk of infection?
  • Is the direction consistent with federal, state of territory requirements?

A risk assessment must also take place and employees need to be consulted. If there are no legislative or regulatory requirements to mandate a vaccination (such as COVID-19), a direction to be vaccinated is unlikely to be considered reasonable. The only thing an employer can do from here is to recommend or encourage staff to get the vaccination.

As Australians start to receive the vaccine, employers may want to monitor which of their staff are immunised. People management software such as BrightHR have features built-in that allow employers to tick off who has received the jab, and keep track of those who have not.

In the instance of an employee refusing to get vaccinated, the employer must look at the reason for the refusal, whether it can be justified under Government advice, and if a vaccination is required for the employee to do their job safely.

If the refusal is justified, the employer can consider whether the employee could perform alternative duties, work in a lower risk location such as from home, or follow alternative control measures to reduce infection spread.

If the employee’s refusal is baseless (e.g. personal preference as opposed to a medical or religious reason), and the employee’s role is considered high-risk (e.g. frontline health care worker), the business may consider disciplinary action for failure to comply with a reasonable management direction. In the absence of legislation however, it is unlikely an employer can defend an unfair dismissal claim should the action result in termination of employment.

“An employer should consult with employees who refuse a COVID-19 vaccination and discuss alternative measures that can help them do their job safely,” continued Ms Dawson.

“Limiting or eliminating face to face interaction, similar to what we’ve seen over the past year with employees working from home, is one of the best options employers have when trying to stop the spread in a workplace where not every worker wants to be vaccinated.

“For business owners considering making vaccinations mandatory as a condition of engagement when hiring new employees, they would need to check if the direction is in line with state or territory government guidelines. If not engaged correctly, the employer may be subject to a general protections claim,” she concluded.



Further enquiries:

Matthew Bridges

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