The Next Great Debate: Vaccines and the Workplace
Australia is finally rolling out the vaccination program against COVID-19. The first lot of doses are marked for disabled and care home residents and front-line workers. However, it won’t be long before employees in your workplace are offered their chance to roll up their sleeve and get the jab. But what happens if they say no?
Under the Australian model Work Health and Safety Laws, an employer has an obligation to eliminate and/or minimize the risk of contracting COVID-19 at work. However, vaccinations are only part of a greater mitigation plan which includes practices like good hygiene, distancing, cleaning and ensuring unwell workers avoid the workplace. These practices should already be in place.
Despite Australia offering the COVID-19 vaccine for free, not everyone is up for getting the jab. As of the end of February 2021, Australia has still maintained that getting the vaccine is voluntary. This isn’t saying that it will always be the case, as technically, the government can enact the Biosecurity Act, making getting the jab mandatory. However, that’s not the current situation.
The Australian government has opened the door to one potential exception to vaccines being voluntary: they could be required as a condition of entry to Australia; or even to an individual state or territory, but that is yet to be decided.
Requiring Employees to Get Vaccinated
Whilst vaccinations will soon be an option, most employers will not need to make vaccination mandatory to comply with the current WHS laws.
From a risk management perspective, latest reports also suggest that protection from vaccines may be temporary, the long term side-effects are unknown and vaccines are not likely to stop transmission. Employers and businesses could also be exposed to legal challenges associated anti-discrimination claims relating to pregnancy, religious beliefs, disability etc.
Some legal experts are also warning that employers and businesses do not have the authority to require employees or customers to be vaccinated, because matters of quarantine and management of public health risks are a function of governmental powers.
Finally, whilst the Australian Government has indemnified vaccine companies against liability arising from injury or death associated with the rollout of the vaccines, this indemnity does not cover employers or businesses.
Can an employee be let go for not getting vaccinated?
Technically, an employee can be let go for not complying with a lawful and reasonable directive at work.
What is considered reasonable, depends on a number of factors including:
- • whether the requirement is proportionate to the risk;
- • whether it operates in a non-discriminatory manner;
- • whether any legislative requirements or health orders exist.
In other words, the obligation is on the employer to prove that the directive is reasonable and therefore lawful.
Before confronting any employees in relation to this matter or writing any directive, it is best to get current advice.
Can an employee insist that their coworkers be vaccinated?
An employee’s insistence that their coworkers be vaccinated may depend on the particulars of the working environment. Again, the question to be asked is whether a directive is both lawful and reasonable.
As with any fitness for work or workplace health and safety concern, an employee should bring this to management’s attention as soon as possible. Employers, in turn, should assess the risk, explain the safety measures in place and address any concern that exists.
Can an employee refuse to work with un-vaccinated co-worker?
As there is insufficient evidence at present to suggest COVID-19 vaccines will stop transmission, an employee refusing to work with a co-worker because they are not vaccinated would be deemed unreasonable.
However, for vulnerable workers, employers should continue to implement other working arrangements, such as working from home, where you can reasonably do so.
What are an employer’s obligations under workers’ compensation laws?
Australia, in contrast to 25 countries including the US, UK and New Zealand, does not have a no-fault vaccine compensation scheme.
However, if an employee contracts COVID-19 they may be entitled to workers’ compensation. This will be dependent on the applicable laws in the corresponding state or territory, so it is best to seek advice.
So, what can we learn from this?
The great Covid-19 vaccination debate is ongoing as the vaccination roll-out proceeds. In the interim, it is not recommended that your employees partake in any medical test or vaccination program without first seeking advice. Furthermore, employers should take this time to ensure their workplace risk assessment and control measures are working.
As we have witnessed since the outbreak of Covid-19, regulations change quickly as the pandemic progresses, so it can be challenging staying on top of current guidelines. Human Resource Services is dedicated to assisting businesses and managers during these trying times so let us help you make your way through this new terrain before any risky or expensive legal issues arise.
