Can you demand your employees to be vaccinated?

“No jab, no job?”

With the rollout of the COVID-19 vaccination underway in Australia, the enforcement and management of vaccinations has become another challenge for business leaders and HR professionals.

Many employers are wondering if they can demand their employees to be vaccinated.

The Fair Work Ombudsman has recently advised that most employers should assume they won’t be able to force employees to be vaccinated.

Whilst the Australian Government is encouraging all Australians to be vaccinated to help fight the pandemic, it is currently not mandatory.

Interestingly, three in four Australians (73%) said they agreed or strongly agreed that they would get the COVID-19 vaccination if it was recommended for them, according to a survey conducted by the Australian Bureau of Statistics in December 2020.

According to Safe Work Australia, “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”.

Whilst the majority of employers can’t require their employees to be vaccinated, there may be certain industries (such as aged care workers, hospital workers, meat processing workers and frontline hotel quarantine staff) and some employers that may decide to make vaccination mandatory.

According to Fair Work Australia, relevant factors an employer should consider in requiring employees to be vaccinated are:

• whether a specific law (such as a state or territory public health law) requires an employee to be vaccinated (see Legislation and public health orders requiring vaccination against coronavirus).
• 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).

What are some of the questions to consider before implementing mandatory COVID-19 vaccinations?

• Do you need to draft/update your vaccination policy?
• Do you need to review and update employment contracts regarding vaccination requirements for current and future workers?
• What will your policies and processes be if a worker refuses to be vaccinated?
• Will you require customers/clients and visitors to provide evidence they have been vaccinated before entering your workplace?
• What will you do if some workers cannot be vaccinated because of medical conditions?
• Can you ask for proof of vaccination and record this information without breaking any privacy laws?
• What will happen if workers go to different site locations or on client/customers sites that have different requirements?
• How will you communicate the changes? You need to ensure you have a communication plan in place.
• If you use casual workers, will they need to provide a certificate or proof of vaccination before entering your workplace?

Employers need to be wary that it could be discrimination if an employer tries to enforce an employee to be vaccinated against their wishes making it a condition of continuing the employment. This could lead to an unfair dismissal and discrimination claim.

Want to find out more?

For further information, the updated guidance is available on both the FWO and SWA websites.

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).