With the arrival of over 457,000 doses of Pfizer in Sydney earlier this week, Australia’s COVID-19 vaccine rollout appears to be gaining significant momentum across the country. However, for the most part, vaccination remains completely voluntary. So the question remains - can employers mandate vaccinations as a pre-condition for working?
In this update, we discuss the current government situation and industry response, whether employers can mandate the vaccine, and common privacy concerns surrounding the collection of vaccination evidence and what employers can do.
- Whether employers can direct employees to get vaccinated remains largely unclear due to the lack of case law in this area save for certain industries such as health, aged care and childcare. We previously analysed three decisions handed down which were relevant in these two industries.
What can employers do?
The Fair Work Ombudsman (FWO) is encouraging employers and employees to collaborate in the workplace in terms of discussing, planning, and facilitating COVID-19 vaccinations. In terms of providing support, employers can:
- provide leave or paid time off for employees to get the vaccination;
- assist in ensuring employees have access to reliable information about vaccinations; and
- explore other options such as alternative work arrangements for employees who do not want to be vaccinated.
In terms of mandating vaccinations, the FWO has advised that employers can only do so where:
- the law (such as Public Health Orders or work health and safety laws) requires an employee to be vaccinated; or
- the requirement is provided in an enterprise agreement, other registered agreement, or employment contract; or
- it would be ‘lawful and reasonable’:
- this is assessed on a case-by-case basis and it should be noted that there is a lack of case law at present to clarify what is meant by ‘lawful and reasonable’;
- for a direction to be lawful it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies; and
- employers need to be careful that requirements are not in breach of anti-discrimination laws or Fair Work legislation.
For more information on managing vaccinations in the workplace click here.
Public Health Orders
At present, the NSW Government has issued Public Health Orders requiring vaccination for:
- Quarantine workers;
- Transport workers;
- Airport workers;
- Authorised workers leaving an area of concern for work;
- Construction workers who live in an area of concern; and
- Certain early education, care facility workers and disability support workers who live in or work in an area of concern.
Mandatory vaccination for school staff
On 27 August 2021, the NSW Government confirmed that vaccinations for all school staff across all sectors will be mandatory from 8 November 2021.
The NSW Government has urged employers to encourage their staff to get vaccinations so that they can return to work earlier. A ‘‘no jab, no work’ policy is currently being considered however nothing has been finalised as yet.
No Fault COVID-19 Indemnity Scheme
The Federal Government recently finalised the details of the No Fault COVID-19 Indemnity Scheme (the Scheme) which seeks to provide:
- employers with protection from adverse reactions or injuries caused by its employees getting vaccinated;
- Australians with quick access to compensation for COVID-19 claims arising out of the administration of the vaccine; and
- protection to health professionals administering vaccines so that they can continue working during the vaccine rollout.
The Scheme will cover claims above $5,000 where there is evidence of an adverse reaction to the vaccine. This cover will be backdated to February 2021. Ultimately, the Scheme encourages employers to continue engaging and implementing workplace vaccination programs whilst affording employers protection from being saddled with such costs.
Local resource sector
BHP Billiton has announced that it will begin trialling on-site vaccinations before deciding whether it will make vaccinations mandatory for its Australian employees. The company is currently assessing whether to make vaccinations a condition of entry to its Australian sites and offices with a view that a policy is likely to be implemented in early 2022. The Construction Forestry Maritime Mining and Energy Union (the Union) did not support mandatory immunisation but encouraged vaccination where possible and subject to medical advice. The Union was also critical of the Federal Government’s vaccine rollout and emphasised that employers should consult with their workers through their unions and safety representatives about COVID controls rather than make their own decisions.
Virgin Australia recently announced its intention to implement a mandatory vaccination policy for its frontline employees subject to consultation with unions, employees, and safety committees. This comes as its major competitor Qantas mandated COVID-19 vaccinations for all employees. The airline says it will not announce a final policy prior to considering feedback from the various stakeholders.
Many may wonder, can my employer require me to disclose information relating to my vaccination status?
Employers are only able to collect evidence of vaccination in limited circumstances. An employer may ask to view evidence of an employee's vaccination status without raising privacy obligations provided they do not record this information. An employer should not collect vaccination status information from an employee unless the employee consents and it is reasonably necessary for the employer's functions and activities. Consent is not required where collection of information is 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).
For more information on privacy in the workplace see:
- Office of the Australian Information Commissioner – COVID-19: Vaccinations and my privacy rights as an employee
- Office of the Australian Information Commissioner – Coronavirus (COVID-19) Vaccinations: Understanding your privacy obligations to your staff
- Best practice guide – Workplace privacy.
Implications for you
Employers need to keep an eye on updates to Public Health Orders particularly where it is anticipated that further workers in various industries will be added to the current list already required to be vaccinated.
While in some cases employers are able to require employees to receive a vaccination against COVID-19, generally exercise caution due to the legal implications of making vaccinations mandatory. In any event, it is encouraged that employers and employees collaborate to find solutions that are suitable for their workplaces and individual needs while ensuring that employees’ privacy rights are upheld. As always if uncertain seek advice.