Workplace Vaccination Policies

Mandatory vaccination has long been a requirement for some Australian workers. It is legal to require vaccination as a condition of employment as long as it is mandated within the framework of contractual obligations, award guidelines and National Employment Standards. The aim of mandatory vaccination is to reduce the health risk to the employee, the employer and the public. The emergence of COVID 19, and the development of vaccinations to reduce the spread of the virus, has recently shone a spotlight on the concept of mandatory vaccination. Australian governments have largely taken the position that Covid 19 vaccination is voluntary, with the exception of some workers who are at greater risk of infection or work with vulnerable individuals. It is left to employers to assess whether a workplace vaccination policy mandating vaccinations is the appropriate approach for their business. This article outlines some important factors that a company should consider before implementing workplace vaccination policies mandating vaccinations in Australia.

Workplace Vaccination Policies

Workplaces are encouraged to take a collaborative approach with their employees to vaccination, have frank discussions, and make arrangements to limit the burden on employees.  Employers can provide support to their employees by making current and reliable information available and providing paid leave for employees to receive their vaccination.

Can An Employer Make Vaccinations Mandatory?

An employer can implement a workplace vaccination policy requiring employees to have a vaccination under some circumstances, such as when:

• There is a public health order that requires employees to be vaccinated;
• There is a workplace vaccination policy in the employment contract, enterprise agreement or other registered agreement; or
• It is reasonable and lawful for the employer to give this direction, assessed on a case-by-case basis.

For instance, in every state and territory in Australia it is mandatory for residential aged care workers to agree to the COVID-19 vaccination as a condition of their employment. Public health orders have established that all workers, including permanent and casual employees, volunteers and placement students must notify their employer of their vaccination status and produce either a COVID-19 Digital Certificate or an Immunisation History Statement.

An employer should seek legal advice before implementing a workplace vaccination policy mandating COVID vaccinations in their workplace. Employers should pay particular attention to whether such a policy is a contravention of discrimination laws. The employer should review all employee agreements, contracts, applicable awards and workplace policies for any mention of relevant issues. Some employment agreements and contracts contain a vaccination clause, but employers should note that a clause pertaining to flu vaccinations does not extend to COVID-19 vaccinations.

New Employees

A workplace may consider inserting a vaccination clause into their standard employment contract for new employees or require individuals to receive a vaccination before starting work. Again, this is an area where the employer should obtain legal advice to ensure that this does not represent a breach of anti-discrimination laws.

Paid Leave For Vaccinations

An employer that has a mandatory workplace vaccination policy in force must provide the employee with paid time off if the vaccination appointment is during work hours. The employer should also consider covering the costs incurred travelling to the appointment. Even in workplaces where vaccination is not mandatory, the employer is encouraged to facilitate the process for their employees by offering time off or incentives for their employees to be vaccinated against diseases and conditions that could affect their workers.

An employee cannot typically take personal leave (sick leave) in order to be vaccinated because personal leave entitlement is only available to an employee who is too injured or ill to attend work. However, the company enterprise agreement, award or workplace policy may make allowance for the use of sick leave entitlement.

On the other hand, if the employee feels too unwell to work after being vaccinated, that falls within the legal entitlement to sick leave. In the event that a permanent employee is unwell after vaccination and has no sick leave available, they can negotiate with their employer to use another leave entitlement, such as annual leave or unpaid leave. Casual workers do not accrue sick leave so if they feel unwell after a vaccination the best approach is for them to ask their employer for adjustments to their current working schedule.

Can An Employee Refuse To Be Vaccinated?

An employee is legally entitled to refuse to comply with a workplace vaccination policy. In this instance, it is essential that the employer enquire as to the reason why the employee is refusing. The employee may have a legitimate reason why they are unable to receive a certain vaccination, such as a medical condition. The employer may ask for a medical certificate to confirm this circumstance.

An employer should consider all options if an employee refuses to be vaccinated, such as alternative work arrangements. In this situation, the employer is entitled to bring disciplinary action on the employee for failure to comply with a lawful directive. The employer should be careful to assess whether disciplinary action is reasonable given the circumstances, and should obtain legal advice before taking any actions against non-compliant employees.

Can I Refuse To Work With Unvaccinated Colleagues?

An employee generally cannot refuse to attend their workplace because a colleague is unvaccinated. The employer can direct an employee to attend work whatever their concerns. In response to employee apprehension, the employer should outline all the regulations they have implemented to ensure a safe workplace.

Armstrong Legal can provide advice to a company or business on workplace vaccination policies, or any other aspect of employment law. Please contact the team on 1300 038 223.