The COVID-19 vaccine is currently being rolled out across Australia. The voluntary, free vaccination will be offered to all Australians, and will be rolled out in phases starting with priority groups. If you employ staff in your business, you may be wondering about your and your employees’ rights and responsibilities in relation to the vaccine. Here are some frequently asked questions (FAQs). These FAQs provide general information only. It is important that businesses and employees seek appropriate advice about their specific circumstances.
1. Can an employer require an employee to be vaccinated?
There are currently no statutes or public health orders in Australia that allow employers to require their employees to be vaccinated against COVID-19.
However, in limited circumstances an employer may require their employees to be vaccinated, such as:
- If a specific law (such as a state or territory public health law) requires an employee to be vaccinated. No such laws currently exist in Western Australia.
- If a provision requiring vaccinations is included in an industrial agreement/enterprise agreement, award employment contract.
- In circumstances where it would be lawful and reasonable for an employer to direct their employees to be vaccinated.
- Some circumstances in which a direction may be reasonable include where employees interact with people with a higher risk of being infected with COVID-19 (for example, hotel quarantine workers) or interact with those who are most vulnerable to the health impacts of COVID-19 (for example, NDIS or aged care workers).
- For a direction to be lawful, it needs to comply with any contract, award or industrial agreement/enterprise agreement, and any applicable Commonwealth, state or territory law (for example, an anti-discrimination law).
Legal advice is recommended if you are considering making COVID-19 vaccinations mandatory in your business, or if you operate in a high-risk environment for COVID-19, such as health care. Individuals who have questions about their rights in relation to vaccinations should seek their own advice on those issues as they relate to their specific situation.
2. Can you collect information about an employee’s vaccination status?
There are a number of rules, regulations and legal instruments which impact on how businesses collect and use information, including information about health matters. Those rules, regulations and legal instruments include the Privacy Act 1988 (Cth), relevant industrial awards and agreements and common law rights and obligations of employers, all of which might vary depending on the particular business.
For businesses who are subject to the Privacy Act 1988 (Cth), the collection of information about an employee’s vaccination status will need to be carried out consistently with that Act, including any relevant obligations in relation to the collection of "sensitive health information" under that Act (which the Act generally requires a higher standard for, including requiring consent to collection and only allowing information to be collected where it is reasonably necessary for your functions and activities, other than where a specific exception exists).
Businesses who are subject to the Privacy Act 1988 (Cth) will also need to ensure that they comply with the relevant Australian Privacy Principles in how they collect and deal with that information, which might include having to ensure that:
- they accurately record the information, keep it up-to-date and store it securely; and
- limit the use and disclosure of employee vaccination status information to what is necessary to prevent and manage COVID-19; and
- regularly review whether this information still needs to be retained.
Businesses can find guidance on their obligations under the Privacy Act 1988 (Cth) on the Office of the Australian Information Commissioner's website at: www.oaic.gov.au
The requirements that apply to businesses who are not subject to the Privacy Act 1988 (Cth) will depend upon the particular business and the purposes for which the business is wanting to collect the information.
3. What happens if an employee refuses to be vaccinated?
If an employee refuses to be vaccinated (if requiring a vaccination is lawful), the employee should be asked to explain their reasons for refusing the vaccination. If their reason is legitimate (for example, they have an existing medical condition), you should consider whether there are any other options available instead of vaccination, such as making alternative working arrangements. Note that directing an employee to provide evidence of a medical reason for refusing a vaccination is likely to raise privacy issues.
Disciplinary action, including termination of employment, may only be legal if the employee’s refusal is in breach of a specific law or a lawful and reasonable direction requiring vaccination and will depend on the individual circumstances of the case.
Note that employees have various protections against being dismissed or treated adversely in their employment and employers should make sure that they comply with the relevant industrial relations system guidance.
4. Can an employee refuse to come to work because a co-worker isn’t vaccinated?
While vaccination is voluntary, it is unlikely that an employee could lawfully refuse to attend their workplace where a co-worker isn’t vaccinated against COVID-19.
5. Can you require a prospective employee to be vaccinated before starting work?
You may be able to require a prospective employee to be vaccinated against COVID-19 but should consider discrimination protections under existing legislation when considering this.
If you are unsure of your rights and responsibilities in relation to workplace vaccinations, it is recommended that you seek professional legal or human resources advice. The following resources may also be useful:
- COVID-19 Vaccine information (health.gov.au)
- Information on COVID-19 vaccinations in the workplace (Fair Work Ombudsman)
- Employer privacy obligations (Office of the Australian Information Commissioner)