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Covid-19 – What is Considered Legal & Reasonable for Employers

As we emerge from Covid Lockdown in NSW, it is important for Employers to know what is considered legal and reasonable in directing their employees to get vaccinated.

Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable is fact dependent and needs to be assessed on a case-by-case basis. Just because it may be lawful and reasonable to give a direction to one employee, that doesn’t mean it will automatically be lawful and reasonable to give the same direction to another employee or to all employees.

For a direction to be lawful, it needs to comply with an employment 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 to an employee is reasonable. Things to take into consideration include:

  • the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service)
  • the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community
  • the terms of any public health orders in place where the workplace is located
  • the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant (find out more at the Department of Health: statement from ATAGI )
  • work health and safety obligations (find out more at Safe Work Australia )
  • each employee’s circumstances, including their duties and the risks associated with their work
  • whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
  • vaccine availability.

When undertaking this case-by-case assessment, it is helpful to divide work into 4 broad tiers:

  • Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
  • Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
  • Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
  • Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

A workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time.

The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus.

An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.

An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.

For employees performing Tier 3 work:

  • where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable
  • where community transmission of COVID-19 is occurring in an area, and an employer is operating a workplace in that area that needs to remain open to provide essential goods and services, a direction to employees to receive a vaccination is more likely to be reasonable.

Regardless of the tier or tiers which may apply to work performed by employees, the question of whether a direction is reasonable will always be fact dependent and needs to be assessed on a case-by-case basis. This will require taking into account all relevant factors applicable to the workplace, the employees and the nature of the work that they perform.

Employers should get their own legal advice if they’re considering making coronavirus vaccinations mandatory in their workplace.

 

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

An employer may be able to require a prospective employee to be vaccinated against coronavirus.

Prior to 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.

 

How does a requirement to be vaccinated 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, such as disability.

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

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

 

Can an employee refuse to be vaccinated?

Some employees may have questions or concerns about getting vaccinated. You can find information about COVID-19 vaccines from the Department of Health , including answers to common questions about the safety and effectiveness of the vaccines.

An employee might refuse a direction to be vaccinated even if they are required to under a specific law, agreement or contract, or after receiving a lawful and reasonable direction. In these situations, an employer should ask the employee to explain their reasons for refusing the vaccination. An employee may have a legitimate reason for not being vaccinated. For example, the employee could have an existing medical condition that means vaccination is not recommended for them. Employees should speak to their doctor if they have concerns about receiving a vaccination because of a medical condition.

If the employee gives a legitimate reason for not being vaccinated, the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements, such as asking the employee to perform different duties or to work from home.

Where an employee has a reason for not getting vaccinated, an employer may be able to request evidence of the reason for their refusal.

In some circumstances where an employee refuses to be vaccinated, employers may be able to consider disciplinary action. Whether disciplinary action is reasonable will depend on the circumstances.

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

 

Resolving workplace issues

If an employee has concerns about being required by their employer to be vaccinated, we encourage them to first discuss their concerns with their employer.

Issues in the workplace can usually be resolved quickly and effectively by an employer and an employee having a conversation.

 

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 lawful and reasonable direction requiring vaccination.

Before taking any action, an employer should talk to the employee and discuss the employee’s reasons for not wanting to get vaccinated.

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:

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. Learn more about standing down employees at Stand downs.

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.

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 they may breach unfair dismissal or adverse action laws under the Fair Work Act.

Employers should also consider getting legal advice in these situations.

 

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 can ask the employee to provide evidence of the reason for their refusal.

Employers are only able to collect evidence of vaccination in limited circumstances. More information about workplace privacy is available at:

An employer should also make sure that a requirement to provide evidence is 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.

 

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 can also ask the employee to provide evidence of their vaccination.

An employer should also make sure that a requirement to provide evidence is 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.

An employer may ask to view evidence of an employee’s vaccination status without raising privacy obligations, provided they do not collect (i.e. make a record or keep a copy of) this information. There are specific requirements for keeping medical records which must be complied with. An employer should not collect vaccination status information from an employee unless the employee consents and the collection is reasonably necessary for the employer’s functions and activities. However, consent to collection is not required if the collection is required or authorised by law (for example, a public health order applies or where it is necessary for the employer to meet their obligations under WHS laws.

 

What counts as proof of vaccination?

Australians can access proof of vaccination after they have been vaccinated through myGov, their vaccination provider (including a medical practitioner) or the Australian Immunisation Register. See Services Australia – How to get proof of your COVID-19 vaccinations  for details.

 

For more information on the Public Health Order in NSW, please click here https://www.health.nsw.gov.au/Infectious/covid-19/Pages/public-health-orders.aspx

 

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