Mandatory vaccines: Understanding your rights as an employer

Can an employee be fired for refusing the vaccine? The answer may surprise you

Mandatory vaccines: Understanding your rights as an employer

The world has changed drastically in the past two years with a global pandemic knowing no bounds in terms of spread, severity, and sickness. Unfortunately, different variations of strains are still continuing to plague various locations in the world with no one safe from its course. Here in Australia, we seem to be on the receiving end of the tailwinds of the virus, though one can never be too sure when it will flare up again.

As Australia opens up again to domestic working in offices, warehouses, gyms, restaurants and the like, with differing rules in each state, questions arise as to what the requirements are when it comes to vaccine mandates for employers. Fortunately, a lot of new workplace mandates fall under work, health and safety legislation, thereby reducing the new for Australia-wide companies to be legal experts on ever-changing COVID-19 state public health laws.

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“Employers have a duty under work, health and safety laws to manage, so far as reasonably practicable, the health, safety and welfare of their workers,” Christa Lenard, partner, Kingston Reid, told HRD. “To the extent COVID-19 may be contracted or transmitted in the workplace, it is necessary to assess that risk and to take steps to minimise the risk of a worker become ill as a result. A requirement that workers be vaccinated is one of the control measures at an employer’s disposal.”

Under state public health orders, if a vaccination is required for that industry or job, then an employer can enforce that mandate.

“Employees are obligated to comply with lawful and reasonable directions while at work,” Lenard added. “Most contracts of employment also make it clear that employees are required to comply with company policies, in place from time to time. Finally, employees have their own duty of care obligations to ensure, so far as reasonably practicable, their health, safety and wellbeing as well as the health, safety and wellbeing of others in the workplace. This means, where a vaccine mandate is lawful and reasonable, there will be limited basis to refuse.”

Vaccination has become a highly debatable topic in the Australian public of late with large crowds marching in capital cities across the country vocalising the rights to stay unvaccinated. This has gained support from some prominent federal politicians but ultimately it is the state governments who hold the power when it comes to deciding the rules regarding individuals getting vaccination and what rules employers should follow.

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“Recognising vaccination is a higher order or more invasive control measure, as distinct from requiring a worker to wear a face mask or check into the premises, means it is necessary to assess the risk against the type or work being undertaken and the nature of workplace,” Lenard told HRD. “Where there is a greater risk of exposure to the disease as a result of the work being undertaken or the type of workplace, there will be a greater impetus to minimise that risk via a COVID-19 vaccine mandate.   

“Employers should be aware of discrimination and privacy laws, however, obligations in respect of both can be managed through having a well drafted policy which sets out the process for considering genuine medical exemption requests and which clarifies the process for how the organisation will obtain, store and use the sensitive health vaccination information supplied by workers.

“Finally, it is important not to forget any underlying contractual or industrial instrument which may impose specific consultation obligations.”

One area of concern for employers is when an employee refuses to state their vaccination status claiming privacy. This is a contentious topic but one that can be alleviated through a sound policy within the work, health and safety laws of a company.

“An employer can reasonably request an employee divulge their vaccination status provided that request is made for a genuine reason such as to assess workplace safety or enable planning for COVID-safe protocols and the information received is treated as sensitive health information for the purposes of the Privacy Act,” Lenard explained.

“Where this is the case, then a failure to provide that information would amount  to a failure to follow a lawful and reasonable direction. In this case, the employer should seek to discuss the reasons for the requiring the information, reassure the employee as to the proper storage and use of that information and gently remind them of their own WHS obligations.

“It is always beneficial to try and understand the basis of the employee’s hesitancy or refusal so that these concerns can be addressed, and factual information provided to the employee. Ultimately, a failure to disclose vaccination status may result in the employee being unable to continue to their role. For employees seeking to challenge the request, there is little recourse where Privacy Act obligations are being complied with.”

Employees also can’t refuse a COVID-test despite many claiming that they can.

“Where there is a reasonable basis for the requirement/request an employee can’t refuse,” Lenard added. “If an employee has concerns or is unable to comply with the request, they should discuss their reasons with their employer.”

What legal measures should an employer put in place to protect themselves?

 

  1. Conduct a thorough WHS risk assessment of the various workplaces and positions/type of work being undertaken across the organisation. This will help you to understand high risk roles and enable you to plan and implement COVID-safe measures to minimise the risk. 

 

  1. Consult with your workforce on vaccination (and other COVID-safe) safety requirements. Consultation is an essential element of an employer’s WHS obligations. It also helps the employer to gauge how employees feel about COVID-19 vaccinations requirements and physically working in the workplace.

 

  1. Assess the reasonableness of any vaccination mandate process and develop a policy. It may be that it is not a one size fits all policy and different roles or workplaces will have different requirements based on composition, which state they operate in and the physical limitations of the workplace.

 

  1. Have a clear process for managing exemption requests.

 

  1. Vaccination status and any information contained on an Immunisation Certificate is considered sensitive health information and needs to be treated as such for the purposes of the Privacy Act. An employee’s vaccination status should not be discussed broadly and information limited to a ‘needs know basis’.   

 

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