Fair Work Ombudsman on COVID-19 Vaccinations

There has been a lot of recent discussion around the obligations on employers and employees in relation to COVID-19 vaccinations.

The Fair Work Ombudsman (FWO) has recently clarified the matter whilst keen to point out that both employers and employees should consider getting legal advice about their own circumstances.

The Australian Government’s policy is that receiving a vaccination is voluntary and therefore in most circumstances the majority of employers will not be able to require employees to be vaccinated against COVID-19. There are, however, limited circumstances where an employer may require their employees to be vaccinated.

Whether employers are able to require employees to be vaccinated, an employer should consider:

  • 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 (assessed on a case-by-case basis).

On its own, the coronavirus pandemic doesn’t automatically make it reasonable for an employer to direct their employees to be vaccinated against coronavirus. Some circumstances in which a direction may more likely be reasonable include:

  • where employees interact with people with an elevated risk of being infected with coronavirus (e.g. employees working in hotel quarantine or border control)
  • where employees have close contact with people who are most vulnerable to the health impacts of coronavirus infection (e.g. employees working in health care or aged care).

Considerations also may include whether employees have a legitimate reason for not being vaccinated (for example, a medical reason), and how protections for employees under anti-discrimination laws may apply.

If an employee refuses to attend the workplace because a co-worker isn’t vaccinated, the 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 of the circumstances, including the employer’s work health and safety obligations.

If it is unclear whether a direction or an employee’s refusal is reasonable, employers should consider seeking legal advice before taking disciplinary action.

If an employee has concerns about the safety of the workplace, they should raise their concerns with their employer as soon as possible. Employers should also consider sharing information about any steps they’ve taken to ensure a safe workplace, to help manage employee concerns.

This article is a summary of the guidance given by the Fair Work Ombudsman. It has been prepared for information purposes only and is not legal advice. For legal advice regarding your specific circumstances, please contact WR Law directly on (03) 5499 6131 or by email at admin@wrlaw.com

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