As the State and Federal Government rolls out vaccinations for COVID-19 across Australia, it’s important for employers to understand their obligations.
The major question is:
Can I require my staff to be vaccinated?
The short answer is, no. For almost every workplace in every industry, employers shouldn’t expect that they can require their staff to be vaccinated. The government has consistently advised that the vaccine isn’t mandatory, and as such, employers won’t (generally) be able to mandate it either.
The Fair Work Ombudsman currently sets out the following exceptions for circumstances where an employer may be able to require vaccinations.
- 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).
The follow on question may well be:
If I can’t require staff to be vaccinated, how do I continue to keep staff safe in the workplace?
For some time to come, workplaces should still expect to keep the usual safety practices in place, when it comes to COVID-19, including social distancing practices, thorough cleaning practices, relevant PPE such as masks and access to hand sanitiser.
Employers must always do what is ‘reasonably practicable’ to reduce hazards and their risks in the workplace, so, since vaccinations can’t be required, reviewing workplace practices for what may reduce COVID-19 related hazards as vaccines do roll out, would be wise.
What if someone doesn’t want to work with other unvaccinated staff members?
At this point in time, as vaccinations are not mandatory, and some people will have various reasons for not being able to be vaccinated, it will often be a reasonable and lawful direction to request/require vaccinated and unvaccinated staff to work together.
Where an employee continues to refuse to work, consider getting legal advice before taking disciplinary action. As this is such a new issue to be dealt with, caution is recommended.
If you need help getting through the major changes COVID-19 has presented to workplaces, get in touch with our Workplace Partners ASAP.
*This is general information only and doesn’t take your specific requirements into account.