Can an employer require an employee to be vaccinated?

In the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus.

While the Australian Government’s policy is that receiving a vaccination is voluntary, it aims to have as many Australians vaccinated as possible.

There are limited circumstances where an employer may require their employees to be vaccinated. Whether an employer can require their employees to be vaccinated against coronavirus is highly fact dependent, taking account of the workplace and each employee’s circumstances. Relevant factors an employer should consider include:

  • whether a specific law (such as a state or territory public health law) requires an employee to be vaccinated
  • whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations
  • if no law, agreement or employment contract applies that requires vaccination, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated (which is assessed on a case by case basis).

Further considerations may include whether employees have a legitimate reason for not being vaccinated (for example, a medical reason), and how protections for employees under anti-discrimination laws may apply. Learn more at How does a vaccination requirement interact with anti-discrimination laws?

We have included more information on these issues below.

Employers should get their own legal advice if:

  • they’re considering making coronavirus vaccinations mandatory in their workplace, or
  • they operate in a coronavirus high-risk environment (for example, health care or meat processing).

Legislation and public health orders requiring vaccination against coronavirus

State and territory governments may make public health orders requiring the vaccination of workers (for example, in identified high-risk workplaces or industries) in their state or territory. Employers and workers need to comply with any public health orders that apply to them.

New South Wales Government

The New South Wales (NSW) Government has issued a public health order preventing people working in specific types of jobs in the NSW Airport and Quarantine Vaccination Program from entering the workplace or providing services if they haven’t received the first dose of a COVID-19 vaccine. This part of the order came into effect from midday 28 June 2021.

Employees who have arranged to get their first COVID-19 vaccination may be exempt from this order.

The directions apply to:

  • quarantine workers
  • transportation workers
  • airport workers.

The NSW Government – NSW Airport and Quarantine Worker’s Vaccination Program external-icon.png includes more details about who this applies to.

Employers need to make sure that these workers comply with the directions.

For more detail, you can read the public health order at NSW Government – COVID-19 Air Transportation Quarantine Order

Queensland Government

The Queensland Government has issued a public health direction mandating coronavirus vaccination for some workers. The direction was first issued on 31 March 2021 and affects:

  • health service employees
  • Queensland Ambulance Service employees
  • hospital and health service contractors.

Western Australian Government

The Western Australian (WA) Government has issued public health directions preventing quarantine centre workers from entering or remaining at a quarantine centre if they haven’t been vaccinated against COVID-19. The directions came into effect from 10 May 2021.

The directions affect those working within WA’s hotel quarantine system including:

  • security personnel, cleaners and hotel staff
  • medical and health staff
  • ADF personnel and WA police.

 

Agreements or contracts relating to vaccinations

Some contracts or agreements may contain terms relating to vaccinations or coronavirus vaccinations specifically. Employers and employees should check to see if the term applies to coronavirus vaccinations (for example, a term relating only to flu vaccinations won’t apply).

Even where contract or an agreement term applies to coronavirus, employers and employees will need to consider whether the term complies with anti-discrimination laws. A term that is contrary to anti-discrimination laws will not be enforceable.

If in doubt, employers and employees should consider getting legal advice on these issues.

Lawful and reasonable directions

Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable needs to be assessed on a case by case basis.

For a direction to be lawful, it needs to comply with any contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).

There are a range of factors that may be relevant when determining whether a direction is reasonable, including whether the direction is a reasonably practicable measure to eliminate or minimise risks to work health and safety under work health and safety laws.

On its own, the coronavirus pandemic doesn’t automatically make it reasonable for an employer to direct their employees to be vaccinated against coronavirus. Some circumstances in which a direction may be more likely to be reasonable include where:

  • employees interact with people with an elevated risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control), or
  • employees have close contact with people who are most vulnerable to the health impacts of coronavirus infection (for example, employees working in health care or aged care).

Work health and safety considerations are an important factor to consider in working out whether a direction is reasonable. Employers and workers can get guidance on specific coronavirus work health and safety issues from Safe Work Australia

Go to Commonwealth, state or territory workplace health and safety regulators to learn what work health and safety laws apply.

Can an employer require a prospective employee to be vaccinated before starting work?

In most circumstances, an employer may be able to require a prospective employee to be vaccinated against coronavirus.

Before requiring that a prospective employee be vaccinated before starting employment, employers should consider their obligations and responsibilities carefully, for example, under general protections or anti-discrimination laws.

Get more information on discrimination protections under the Fair Work Act at Protection from discrimination at work.

Find out more about anti-discrimination laws in Australia at the Australian Human Rights Commission

How does a vaccination requirement interact with anti-discrimination laws?

It’s important that employers consider their obligations and responsibilities under anti-discrimination laws, which generally prohibit discrimination against employees in the workplace based on protected characteristics. Protected characteristics that are likely to be relevant in considering whether to require vaccination include disability, pregnancy or religious beliefs.

Before requesting or requiring employees to be vaccinated, employers need to consider:

  • Commonwealth, state or territory discrimination laws
  • general protections provisions under the Fair Work Act.

Find out more about anti-discrimination laws in Australia at the Australian Human Rights Commission

Get more information on discrimination protections under the Fair Work Act

If an employer requires an employee to be vaccinated against coronavirus, do they need to pay the employee’s travel costs or give them time off work?

Most employers won’t need to pay for their employees to be vaccinated against coronavirus, because vaccination isn’t mandatory for most employees and most workplaces won’t be able to require their employees to be vaccinated.

In the limited circumstances where an employer can require their employees to be vaccinated against coronavirus, the employer should:

  • cover an employee’s travel costs
  • if the vaccination appointment is during work hours, allow them to attend the appointment without loss of pay.

Employers should consider any applicable awards, agreements, employment contracts or workplace policies, in case they include rules about these types of issues.

Even where an employer doesn’t require their employees to be vaccinated against coronavirus, they can still discuss work adjustments or leave arrangements with their employees to support them getting vaccinated. These arrangements could include:

  • requesting and taking leave (for example, annual leave or unpaid leave)
  • starting work later or finishing early (to help attend a vaccination appointment around work hours)
  • working from home (to help an employee attend a local vaccination appointment).

What happens if an employee refuses to be vaccinated?

If an employee refuses to be vaccinated (contrary to a specific law, agreement or contract that requires vaccination, or after receiving a clear and repeated lawful and reasonable direction), an employer should, as a first step, ask the employee to explain their reasons for refusing the vaccination.

If the employee has provided a legitimate reason for not being vaccinated (for example, the employee has an existing medical condition), the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements.

Whether disciplinary action is reasonable will depend on the circumstances. For more information on disciplinary action for refusing to be vaccinated,

If an employee refuses a direction to be vaccinated, it’s unlikely that their employer can stand down the employee. Stand down is only available in certain circumstances.

Further, employers generally don’t have the power to suspend employees without pay, unless an enterprise or other registered agreement, award or employment contract allows them to.

We encourage employers to discuss options with their employees depending on the circumstances of their individual workplace.

Can an employer take disciplinary action if an employee refuses to get vaccinated?

An employer may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of:

  • a specific law, or
  • a clear and repeated lawful and reasonable direction requiring vaccination.

Whether an employer can take disciplinary action will depend on the individual facts and circumstances. To work out if and how an employer can take disciplinary action, employers should consider the terms, obligations and rights under any applicable:

  • enterprise agreement or other registered agreement
  • award
  • employment contract
  • workplace policy
  • public health order.

Employers should also consider getting legal advice in these situations.

Before taking any action, an employer should talk to the employee and discuss the employee’s reasons for not wanting to get vaccinated. For example, the employee may have a medical condition that means the vaccine may not be safe for the employee to take. In this instance, the employer should consider if there are other options available to keep the workplace safe instead of vaccination.

Employers don’t otherwise have the power to suspend employees without pay unless an enterprise or other registered agreement, award or employment contract allows them to.

Employees have various protections against being dismissed or treated adversely in their employment. Employers should make sure that they follow a fair process and have a valid reason for termination, or it may breach unfair dismissal or adverse action laws under the Fair Work Act.

Can an employer require an employee to provide evidence that they have been vaccinated?

If an employer has provided a lawful and reasonable direction to be vaccinated for coronavirus and an employee complies, the employer could also ask the employee to provide evidence of their vaccination.

Where an employer wants to direct an employee to provide evidence, the employer should make sure that the requirement to provide evidence is also lawful and reasonable. As stated above, whether a direction would be lawful and reasonable depends on all of the circumstances. If it is unclear whether a direction or the employee’s refusal is reasonable, employers should not take disciplinary action lightly and should seek their own legal advice.

What counts as proof of vaccination?

The Australian Government has said Australians will be able to access proof of vaccination after they have been vaccinated.

A medical certificate from a doctor may also satisfy a proof of vaccination requirement.

If an employee refuses to be vaccinated, can an employer require evidence about why they’ve refused?

If an employer has provided a lawful and reasonable direction to be vaccinated and an employee refuses, the employer could also ask the employee to provide evidence of the reason for their refusal.

Where an employer wants to direct an employee to provide evidence, the employer should make sure that the requirement to provide evidence is also lawful and reasonable. Whether a direction would be lawful and reasonable depends on all of the circumstances. If it is unclear whether a direction or the employee’s refusal is reasonable, employers should not take disciplinary action lightly and should seek their own legal advice.

 

 


 

 

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