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To vaccinate or not to vaccinate? That is the question.

Updates from the Fair Work Ombudsman and Safe Work Australia.

Forcing employees to have a jab. Do you know what the law says?

The conversation about whether employers should be able to force their employees to be vaccinated against COVID-19 has been floated for a few months now and what is interesting is that views on this topic do not necessarily depend on which side of the employer/employee relationship people are on. One would think that most employers would be all for the right to require their employees to take a vaccine and visa versa, but that does not appear to be the case.


Socially and legally, it is a difficult area to navigate because of potential implications either decision might have, and the fact that medical views are constantly evolving as our health professionals and politicians grapple with this virus and how to deal with it medically and financially. The team at Terri Bell & Co will continue to monitor the law and bring you updates as they unfold.


So, what is the current law on Covid-19 vaccinations in Australian workplaces?


What does Safe Work Australia say?


In guidance published on 19 February, Safe Work Australia made it clear that employers must continue to be vigilant in protecting employees even as the national vaccine programme is rolled out, noting:


"A safe and effective vaccine is only one part of keeping the Australian community safe and healthy. ...Employers have a duty under the model Work Health and Safety (WHS) laws to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace. ...Employers should ensure that they continue apply COVID-19 control measures including physical distancing, good hygiene and regular cleaning and ensure employees do not attend work if they are unwell."


But what is Safe Work Australia's view of vaccinations?

It is unlikely that a requirement for workers to be vaccinated will be reasonably practicable.

Safe Work Australia states that it is unlikely that a requirement for workers to be vaccinated will be reasonably practicable citing several reasons including the fact that public health experts have not recommended a vaccine be mandatory in any industries, a workplace may be low risk and employees may have medical reasons as to why they cannot be vaccinated.


The guidance makes it clear that it is important that employers:

  • undertake a risk assessment for their business;

  • consider the available control measures and how they help manage COVID-19 risks, including any available vaccines, considering available evidence;

  • consult with employees about COVID-19 and relevant control measures, including the COVID-19 vaccines; and

  • determine what control measures are reasonably practicable for you to implement in your workplace.

Ultimately whether employees should be vaccinated will depend on the circumstances. We recommend you read the guidance, as it sets out a number of factors you should consider on an ongoing basis, including whether a requirement to be vaccinated may be unlawful in the circumstances.


What does the Fair Work Ombudsman say about vaccination requirements?


On 19 February 2021, The Fair Work Ombudsman also updated its guidance on Covid-19 vaccinations, noting:


"In the current circumstances, the overwhelming majority of employers should assume that they won’t be able to require their employees to be vaccinated against coronavirus. ...There are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against coronavirus. The Australian Government’s policy is that receiving a vaccination is voluntary, although it aims to have as many Australians vaccinated as possible."

There are, however, 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 particular workplace and each employee’s individual circumstances.

This is not surprising. Our recent post, "New Year, New Issues. Can employees be required to take a Covid Vaccine & more!" which can be read here, noted, "Whether an employer has recourse as against an employee who refuses to be vaccinated (whether as against the flu or COVID-19), such as by terminating their employment, will depend on the facts of each individual circumstance, including:

  • Why the employee refuses to be vaccinated (i.e., are their health factors at play?);

  • The role the employee performs;

  • Whether being vaccinated can be considered an ‘inherent requirement’ of their position (i.e., what is their role, and is there a particular reason to require them to be vaccinated?)."

The Fair Work Ombudsman also notes that, before trying to mandate that employees receive a COVID-19 vaccination, employers should consider whether:

  • there is any specific law requiring an employee to be vaccinated. As at the date of writing there are no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against coronavirus, however this may change;

  • any workplace agreement includes a provision requiring vaccination. If a contract of employment includes a provision requiring flu vaccinations (or other vaccinations) it may not apply to the COVID-19 vaccination, and even where a term of a contract applies, employers will need to consider whether the term complies with anti-discrimination laws;

  • it would be lawful or reasonable to give a direction to their employees to be vaccinated, with such direction to be assessed on a case-by-case basis; and

  • there are any additional considerations which ought to be factored in (for example whether employees have a legitimate reason for not being vaccinated, whether other accommodations can be made, and anti-discrimination protections).

A full copy of the guidance can be found here, and it sets out further information and guidance on these factors.


Burning Questions answered.


The guidance also provides answers to the following burning questions, so it is worth a read.

  • What happens if an employee refuses to be vaccinated?

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

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

  • Can an employee refuse to attend the workplace because a co-worker is not vaccinated against coronavirus?

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

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

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

The Ombudsman makes it clear that the information provided is for guidance and information only and legal advice that considers your particular circumstances should be sought. If you are considering making vaccines mandatory or are not sure about how to deal with this issue in your workplace, feel free to book in a call with our team.


So, in summary, what is the answer? Currently there is no one size all approach. Businesses must continue to keep abreast of the changes in this area and their obligations including under the Fair Work Act and OH&S laws.


The team at Terri Bell & Co will endeavour to keep you updated as new laws and guidance are handed down in this topical area. However if you have any specific questions, please get in touch with us at info@tlblaw.com.au, or book in a time to have an initial complimentary conversation with our team here.

IMPORTANT NOTICE - The information contained in this article is not intended to be comprehensive. It is general in nature and is not intended to be used as a substitute for legal, financial or other professional advice. You must seek specific professional advice tailored to your personal circumstances before taking any action based on this article.


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