Staff members and vaccinations: The challenges for business
Australia is currently on track to fully vaccinate the eligible population of 20.62 million adults in December 2021.
Based on National Cabinet’s four-stage roadmap to normal, Australia should move to phase B of the plan when 70% of the eligible population have received their second vaccine dose. At this stage, it is expected that lockdowns will be “less likely”, and special rules will apply to the fully vaccinated. When 80% of the eligible population is vaccinated, the plan is for Australia to return to baseline restrictions with no caps on returning visitors and a gradual opening of international travel with safe countries.
Both the New South Wales and Victorian Premiers have stated that there will be greater freedoms for fully vaccinated people. A new QR code check-in technology is expected at the end of September.
But is it discriminatory? The Australian Human Rights Commission (ARC) says: “Vaccine passports are more likely to be consistent with human rights when they are used as a tool to ease existing restrictions and improve public health outcomes. Rather than becoming a further requirement on top of existing restrictions, vaccine passports should generally operate in place of them.”
While public health orders are likely to protect business operators from discrimination claims, not all are waiting. Qantas was the first major airline to state that it would require passengers to be vaccinated on international flights when borders open.
Staff members and vaccinations
In general, vaccination will remain voluntary and free in Australia. Still, some sectors are mandatory (see Legislation and public health orders requiring vaccination against coronavirus). Typical sectors include aged care and hotel quarantine. In these sectors, the employer is generally responsible for enforcing the Health Orders.
Outside of a public health order, an employer can mandate that employees are vaccinated but only if the direction to be vaccinated is “lawful and reasonable”. In addition to being allowed to require vaccinations under the relevant Award or Agreement, employers need to ensure that mandating vaccinations is reasonable. For example, if the staff member’s duties put them at increased risk of being infected or they have close contact with vulnerable people (see Can an employer require an employee to be vaccinated? on the FairWork website).
Qantas will require all frontline employees to be fully vaccinated by 15 November 2021 and all other employees by 31 March 2022. The announcement followed a company-wide survey of staff that revealed 89% planned to be fully vaccinated, and only 4% were unwilling or unable to be vaccinated. Qantas is yet to release details of how medical exemptions will be applied.
In workplaces where vaccinations are not mandatory, an employer can only collect information on an employee’s vaccination status where it is reasonably necessary. That is, for the organisation to function or as required by law. In these cases, it may be possible for the employer to ask to see evidence of an employee’s vaccination status without breaching privacy laws. (Visit the FairWork website and the Office of the Australian Information Commissioner for further information).
Another question is whether an employee can refuse to come to work because their co-workers are not vaccinated. On this, FairWork says: “If an employee refuses to attend the workplace because a co-worker isn’t vaccinated, their employer can direct them to attend the workplace if lawful and reasonable.” But the Australian Human Rights Commission states that where a person is particularly vulnerable to COVID-19, a “blanket rule requiring all employees to attend a particular workplace may constitute indirect discrimination.” Whether it’s reasonable for an employee to attend their workplace is highly dependent on the facts, and you should seek legal advice.
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The material and contents provided in this publication are informative in nature only. It is not intended to be advice and you should not act specifically on the basis of this information alone. If expert assistance is required, professional advice should be obtained.