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Fair Work Ombudsman: most employers not able to mandate COVID vaccines

The following article is a news item provided for the benefit of members. Its content does not necessarily reflect the views of the Australian Institute of Health & Safety.
Date: 
Friday, 19 February, 2021 - 12:45
Category: 
Industry news
Location: 
National News

The overwhelming majority of employers should assume that they won’t be able to require their employees to be vaccinated against coronavirus, according to the Fair Work Ombudsman.

There are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against coronavirus.

There are, however, limited circumstances where an employer may require their employees to be vaccinated, the office of the Fair Work Ombudsman said in a recent update.

“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,” it said.

Relevant factors an employer should consider will 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).

Additional 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.

The Fair Work Ombudsman noted that 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 a term of a contract or an agreement applies to coronavirus, employers and employees will need to consider whether the term complies with anti-discrimination laws, and the office of the Fair Work Ombudsman said a term that is contrary to anti-discrimination laws will not be enforceable.

“On its own, the coronavirus pandemic doesn’t automatically make it reasonable for an employer to direct their employees to be vaccinated against coronavirus,” the Fair Work Ombudsman said.

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).

 

Stand downs are unlikely to be an available option for employers if an employee refuses a direction to be vaccinated, and the office of the Fair Work Ombudsman said employers generally 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.

“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,” they said.

“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.”

However, directing an employee to provide evidence of a medical reason for refusing a vaccination is likely to raise privacy issues.

“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” they said.

“Protected characteristics that are likely to be relevant in considering whether to require vaccination include disability, pregnancy or religious beliefs.”

 

The Australian Institute of Health & Safety (AIHS) will facilitate an online panel discussion on COVID vaccination and the workplace on Wednesday 3 March 2021 from 4-5pm AEDT. Participants will hear from a high-level panel which will discuss issues from a legal, WHS, and general health perspective, and provide insights on how to tackle these issues in your own workplace in the year ahead. For more information visit the AIHS website or register online here.