COVID-19 vaccinations and the workplace

Until recently, COVID-19 vaccinations were not mandatory for any workers working in Australia.

On 28 June 2021, the National Cabinet decided to mandate the first doses of COVID-19 vaccinations for all Aged Care workers.

On the same day, the New South Wales Government issued a public health order preventing workers employed in the NSW public sector, specified in the NSW Airport and Quarantine Workers Vaccination Program, from attending or providing services to a workplace if they have not received the first dose of the vaccine.

Queensland is yet to mandate the vaccine.

Can an employer require an employee to be vaccinated?

For employees who work in industries where COVID-19 vaccines have not been mandated, an employer may be able to require employees be vaccinated against the coronavirus in reasonable circumstances.

Whether or not an employer’s direction to an employee to be vaccinated is reasonable will depend on the facts of each case. Some of the factors that may be taken into consideration in assessing if the direction is reasonable include:

• if the employee is covered by an enterprise agreement or employment contract that includes a term allowing the employer to direct an employee to be vaccinated against COVID-19;
• if the employee is vulnerable to serious illness resulting from COVID-19 infection;
• if the employee is at risk of coming into contact with someone with COVID-19 during the course of their employment;
• if the employee works with vulnerable people, such as elderly people or immunocompromised people; and
• if the employee performs work that is of a critical nature and/or has an emergency function.

There may be legitimate reasons why an employee cannot receive the COVID-19 vaccine. Should this be the case, the employee should provide a medical certificate to their employer. Employers should take this evidence into account, however, it does not necessarily prevent an employer from requiring an employee to have the vaccine. In these circumstances, it may be lawful for the employer to refuse to provide the employee with work or, in exceptional cases, terminate their employment. CJM Lawyers strongly recommends employers seek legal advice prior to rolling out mandatory vaccination regimes.

What if I am dismissed because I cannot receive the vaccine?

Employees may have some protections under Australian anti-discrimination laws which generally prohibit discrimination against an employee on the basis of a protected attribute, such as a disability, pregnancy or religious beliefs.

Will I have to cover the costs associated with receiving the COVID-19 vaccine?

Where an employer reasonably directs an employee to be vaccinated against COVID-19, the employer may be liable for the associated costs. This will depend on the amount of out-of-pocket expenses associated with the vaccination, the time taken to obtain and recover from the vaccination, and the terms contained in the employment contract or any applicable industrial instrument.

Where an employee chooses to obtain the COVID-19 vaccination despite the employer not mandating the vaccine, there is no obligation for the employer to pay the employee to be vaccinated against COVID-19.

In these circumstances, if an employee does decide to be vaccinated against COVID-19, the employee should discuss with the employer if they can access any of the following options to allow the employee to attend a COVID-19 vaccine appointment:

• taking paid or unpaid leave;
• adjusting the employee’s hours of work to arrive at work later or finishing early; and
• working from home to assist the employee to attend a local vaccination centre.

What happens if an employee refuses to be vaccinated against COVID-19?

Where an employee refuses a reasonable direction to be vaccinated against COVID-19, the employer can take disciplinary action against the employee, which may include termination of employment.

When should you seek legal advice?

Employees should consider seeking legal advice before they refuse any direction from their employer to be vaccinated against COVID-19.

Employers should consider seeking legal advice before mandating vaccinations and/or taking any action against an employee who has refused a direction to be vaccinated against COVID-19.

Call CJM Lawyers on 1300 245 299 to find out how we can assist.