Colin’s Corner

The Importance of Rewards

By Colin Toll

COVID vaccinations are a hot topic right now.  The pro and anti vaccers are out and about stating their cases.

Employers and employees are seeking clarity on their workplace rights and obligations as COVID-19 vaccines are being rolled out right now.

Much of the information presented here is gleaned from Australian Government fair Work Ombudsman. While the FWO provides high-level information and guidance, employers and employees should consider getting legal advice about their own circumstances if they find those circumstances are difficult or uncertain.

The overwhelming majority of employers should assume that they will not 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.  Relevant factors an employer should consider are:

  • 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.
  • whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)

The coronavirus pandemic does not make it reasonable for an employer to direct their employees to be vaccinated against coronavirus. 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).

It is unlikely that an employee could refuse to attend their workplace where a co-worker is not vaccinated against coronavirus, because:

  • vaccination is not mandatory, and most workplaces will not be able to require their employees to be vaccinated.
  • the co-worker may have a legitimate reason not to be vaccinated (for example, a medical reason).

If an employee refuses to attend the workplace because a co-worker is not vaccinated, their employer can direct them to attend the workplace if the direction is lawful and reasonable. Whether a direction is lawful and reasonable depends on all the circumstances, including the employer’s work health and safety obligations.

As with many things, COVID has changed our world.  Vaccinations and the workplace are but one of them.  The best solution is for employers and employees to work together to find workable solutions that suit their individual workplace.