The light at the end of the COVID-19 tunnel is approaching as vaccinations for COVID-19 become available worldwide and Australia continues its vaccination rollout.
Employers and employees alike are keen to return to workplaces safely, and vaccinations are key to that being achieved. One question arising is whether employers can require that prospective and current employees are vaccinated under Australian law.
Could employers refuse employment for future prospective employees because they do not have, cannot have or do not want to receive a COVID-19 vaccination?
The guidance from Fair Work is that in most circumstances, an employer may be able to require a prospective employee to be vaccinated against COVID-19. It is important, however, to consider:
Whether declining employment to a prospective employee, due to their refusal to get vaccinated, breaches anti-discrimination or other laws may differ on a case-by-case basis.
Western Australia and Queensland both have public health orders requiring workers in some high-risk industries such as health services and quarantine centres. However, there are currently no general laws or public health orders in Australia that enable employers to require their employees to be vaccinated against COVID-19 (though this could possibly be a requirement once the vaccine is generally available or if the COVID-19 risk increases again).
It is also important to note that an employer may be liable for a worker’s compensation claim should a subsequently employed individual get sick or have a bad reaction to the vaccine.
Regarding existing employees, there are two main considerations:
These two scenarios will raise multiple questions:
The legal position on this is evolving as businesses continue to grapple with how to deal with the return to the workplace by the workforce in a COVID safe manner.
If you are an employer who requires a review of policies, contracts, or compliance with anti-discrimination law, general protections law, and WHS Law, we can help. Contact us here.