1. Can I require my staff to return to the office?
Generally, employers can require staff to return to the office so long as it is a lawful and reasonable request. It would be unlawful and unreasonable to require staff to return to the office if it is contrary to state lockdown rules and if the employer has not taken adequate steps to provide a safe working environment to safeguard employees from COVID-19.
Further, certain employees have the right to request flexible working arrangements, which may include working from home. This includes employees who have a disability or are over the age of 55, as they may be disproportionately impacted by COVID-19. Employers may only refuse this request on reasonable business grounds.
2. Can I require that all staff be fully vaccinated before returning to work?
Employers can only require their employees to be vaccinated where:
a) A specific law requires employees of a certain industry to be vaccinated (such as a state or territory public health order).
Click here to view the complete list of workers required to be vaccinated.
b) An enterprise agreement, other registered agreement or employment contract permits the requirement.
For example, an applicable employment contract or enterprise agreement may contain a “Covid-19 Vaccination Clause” which provides that the employee is required to be vaccinated against COVID-19.
c) The direction would be lawful and reasonable (this is assessed on a case-by-case basis).
For an employer’s direction to be vaccinated against COVID-19 to be lawful and reasonable it must comply with any employment contract, enterprise agreement or other registered agreement as well as any applicable Commonwealth, state or territory laws (for example, anti-discrimination laws).
There are several factors taken into consideration in determining whether a direction to an employee is lawful and reasonable, including:
- the nature of each workplace;
- the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community;
- the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant;
- work health and safety obligations;
- each employee’s circumstances, including their duties and the risks associated with their work;
- whether employees have a legitimate reason for not being vaccinated; and
- vaccine availability.
3. When will a mandate to be vaccinated breach anti-discrimination laws?
By imposing a blanket mandate on employees to be vaccinated against COVID-19, employers need to be cautious not to engage in indirect discrimination. Unlawful indirect discrimination can arise where a group of people are less able to comply with the requirement (for example, because of medical reasons or religious beliefs).
Employers should ensure that any COVID-19 Vaccination Policy implemented contains appropriate carve outs for those with medical or other contraindications to mitigate the risk of discrimination claims.
Note: Each Australian jurisdiction has its own discrimination law(s) and they are not uniform. The differences between the Commonwealth, State and Territory laws will impact what will be considered unlawful discrimination and what exceptions may exist.
4. Can I require my staff to advise me if they have been vaccinated or intend to be vaccinated? Can I ask them for proof?
It is not unlawful to enquire as to whether an employee is/is not vaccinated. However, information about an employee’s vaccination status is sensitive under Privacy Law and employers need to ensure they comply with privacy obligations in collecting such information.
An employer should only direct an employee to provide information about their vaccination status where required/authorised by law and when the employer has lawfully mandated vaccinations in the workplace. In such circumstances, employers are able to require an employee to disclose their vaccination status and require an employee to provide evidence of same.
5. Can I terminate a staff member if they refuse to get vaccinated?
If an employee refuses to comply with an employer’s lawful and reasonable direction to be vaccinated against COVID-19 without a legitimate reason the employee may be subject to disciplinary action, which may include termination.
An employee may have a valid reason on the grounds of medical and health advice not to be vaccinated. Other legitimate reasons for refusal to be vaccinated can also arise on the grounds of the employee’s religious beliefs. Employers should seek appropriate evidence as to the employee’s refusal to get vaccinated (for example, a medical report by a treating medical practitioner).
An employer’s decision to terminate an unvaccinated employee will only be valid to the extent that the original direction on the employee to be vaccinated was lawful and reasonable. As set out in point 2 above, there are several factors considered in determining whether a direction is lawful and reasonable. Prior to a decision to terminate an employee, an employer should ensure they comply with any disciplinary process and consultation requirements to mitigate a claim of unfair dismissal.
6. Is it discrimination to terminate an employee because they are not vaccinated?
Disability discrimination laws require employers to make ‘reasonable adjustments’ for people with a disability. What reasonable adjustments can be made will depend on the facts and circumstances surrounding the employee’s role. An example of a reasonable adjustment that could be made where an employee has a medical reason for not being vaccinated may be to require the employee to undergo periodic testing or another control measure such as wearing a mask.
However, there are circumstances where an employer is not required to accommodate an employee’s legitimate reason for refusal where it would cause an unjustifiable hardship on the employer, for example, employer’s in aged care facilities where the risk of allowing unvaccinated employees on site is too great.
Additionally, it will not be discrimination to terminate an employee where being vaccinated is an ‘inherent requirement’ of their role. This would apply in circumstances where a public health order/direction requires certain groups of workers to be vaccinated.
7. Can I prohibit contractors, customers or other attendees from attending my business premises if they are not vaccinated?
Generally, the owner or tenant of a premises can restrict entry to their premises or impose conditions of entry on those seeking access those premises. However, in choosing whether to allow access or refuse entry to any person, businesses must ensure they do not breach any anti-discrimination laws.
8. Is it discrimination if I refuse entry to someone because they are not vaccinated?
Under disability discrimination laws it is unlawful to discriminate against a person on the grounds of that person’s disability by refusing to allow that person access to or use of a premises that the public is allowed to use.
There is an argument that if a person who is unable to be vaccinated against COVID-19 for medical reasons is refused entry to premises they would be discriminated against on the grounds of disability (this does not apply where a person simply chooses not to be vaccinated against COVID-19 without a medical exemption).
Where a person holds a valid medical exemption in the form currently required by the various jurisdictions and are refused access to premises they could argue that they have been discriminated on the grounds of the medical condition/disability.
9. Can I ask a candidate if they are vaccinated during an interview?
If an employer can establish that being vaccinated is an inherent requirement of the job and the employer can contractually require that a prospective employee be vaccinated against COVID-19, they may enquire as to the prospective employee’s vaccination status/seek proof or evidence of same.
Employers should be mindful of the discrimination principles set out below to ensure any decision not to employ an unvaccinated candidate does not enliven a claim of discrimination.
10. Is it discrimination if I refuse to employ someone because they are not vaccinated?
In circumstances where adjustments to the position to accommodate the unvaccinated employee would cause an unjustifiable hardship to the employer, it would not be considered discrimination and a decision could be made not to employ someone because they are not vaccinated. Additionally, it would also not be discrimination where being vaccinated is an inherent requirement of the role (see question 6 above) or has been mandated in that workplace by the Government. Such circumstances would provide a valid defence to any claim of unlawful discrimination.
11. If I mandate vaccinations, will I be liable to the employee if they suffer illness or medical issues as a result of getting the vaccine?
The Federal government recently introduced the COVID-19 Vaccination Claims Scheme for large claims. This means employers will not be liable where an employee suffers medical issues from the vaccine at a cost greater than $5,000.
For claims under $5,000, employers may be liable for adverse side effects if they mandate the vaccine in the workplace. Under Worker’s Compensation laws an employer may be liable for a ‘personal injury’ arising out of employment. However, ‘injury’ does not typically include mild and temporary symptoms like headache, fever and chills as common sides effects of the vaccine. Therefore, the extent of an employer’s liability will be case dependent.
12. If an employee contracts COVID-19 at work am I liable to them for any damages they suffer?
Employees will be entitled to worker’s compensation if they contract COVID-19 while carrying out activities induced or encouraged by their employer (for example, travel). Therefore, employers must be mindful when telling employees to enter high-risk COVID-19 settings.
Work Health and Safety
If an employee contracts COVID-19 due to an employer’s failure to provide a safe working environment, the employer may be liable for breaches of workplace health and safety laws. Such liability may arise in circumstances where an employer disregards public health advice.
13. Where can I get assistance?
The Fair Work Ombudsman and State/Territory Government websites are frequently being updated with information to assist employees further.
We recommend employers/business owners seek workplace advice to ensure they adhere to public health orders/directions, registered agreements/workplace instruments and work health & safety regulations. Book an appointment with Chamberlains specialised Workplace Team today.
* The information provided in this article is based on the applicable legislation, orders and directions in force as at 20 October 2021.