No jab, no play, no job today

With the ACT being placed into lockdown for the next seven days, Canberrans are all bunkering down and lining up to get tested and book in for their vaccinations. Vaccinations remain to be a topical subject, and mixed messages about whether or not vaccinations are available or mandatory continue to cause confusion.

It would be nice to think that people will listen to the advice proffered by well-respected scientists, government advisors and international medical experts who say the COVID-19 vaccines are generally safe, well-tested and imperative to tackling the global pandemic. Unfortunately, some people listen to what is posted on Facebook by the guy they went to school with who failed year 10 biology and are reluctant to get the vaccine.

This blog will examine the current legal status of vaccination enforceability (as at 13 August 2021), and what this means for employers and employees.

Can your employer make vaccinations mandatory?

This is entirely dependent on what industry you work in and what state or territory you live and work in, as mandatory vaccination is guided by state and territory based public heath orders. Unfortunately, this is a grey area, as some states have already put these public heath orders in place and others have not and intend on doing so by mid-September.[1]

Employers can only require their employees to be vaccinated where:

A specific law (such as a state or territory public heath order) requires an employee to be vaccinated;
The requirement is permitted by an enterprise agreement or other registered agreement or employment contract; or
It would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.[2]

What is a lawful and reasonable direction to be vaccinated?

Fortunately, the Fair Work Commission has offered some additional guidance to assist employees and employers in determining what they are required to do and what is considered to be a ‘lawful and reasonable’ request to be vaccinated.

Unfortunately, the definition is vague and each lawful direction needs to be assessed on a case by case basis. The following guidelines may assist in determining whether a direction to an employee is reasonable, including (but not limited to):

The nature of the workplace (e.g. public facing roles, whether social distancing is possible and whether the business provides an essential service);
The extent of community transmission of COVID-19 in the location where the direction is given, including the risk of the transmission of the Delta variant
The effectiveness of vaccines in reducing the risk of transmission;
Work health and safety obligation;
Each employees circumstances, including duties;
Whether employees have a legitimate reason for not being vaccinated; and
Vaccine availability. [3]

When undertaking a case-by-case assessment, the Fair Work Commission recommends that work is divided into 4 broad tiers:

Tier 1 work – where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (e.g. hotel quarantine workers or border control).
Tier 2 work – where employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 (e.g. employees in aged care or health care).
Tier 3 work – where the interaction or likely interaction between employees and other people such as customers, other employees or the public in the course of employment (e.g. shop works supplying essential goods and services).
Tier 4 work – where employees have minimal face-to-face interaction as part of their normal employment duties (e.g. where they are working from home).

At present, the ACT does not have a public health direction which mandates vaccination.

So, if vaccinations can be made mandatory under public heath orders, how is a public health order legally enforceable and binding?

The Public Health (Emergency) Declaration 2020 declared the ACT as an emergency zone, and this allows the Chief Health Officer to use their powers to create binding public health orders. This declaration was made under the Public Health Act 1997.

As a public health emergency has been declared in the ACT in order to assist in combating COVID-19, the Chief Health Officer has additional powers to do whatever is necessary to contain the spread of COVID-19 to reduce the risk to Canberrans, including making Public Emergency Health Directions. [4]

This means that if the ACT makes a public health order about vaccines it will be enforceable, and those people will be required to vaccinate unless they have a reasonable excuse to not be vaccinated.

If public health orders are breached in the ACT, people may be issued with fines (penalty units) that range up to $8,000.00 for an individual.[5]

What if an employee refuses to be vaccinated?

If an employee refuses to be vaccinated, contrary to a specified law, agreement or contract that requires vaccination, or after receiving a lawful and reasonable direction, the employer should ask the employee to provide reasons for refusing vaccination.[6]

If there is a legitimate reason for not being vaccinated, the employee and employer should consider whether there are alternative options to vaccination, including alternative working arrangements.

Disciplinary action is dependant on the individual circumstances. Importantly, employers cannot suspend employees without pay unless an enterprise agreement, award of employment contract allows them to.[7] Employers need to ensure they follow a fair process and have a valid reason for disciplinary action, otherwise they risk proceedings under the Fair Work Act. [8]

What can employers do to support their employees in getting vaccinated?

The Fair Work Commission is encouraging employers and employees to work together and find solutions and arrangements to suit their individual needs and solutions to support one another and their workplace.[9]

Some suggestions to support employees in getting vaccinated or making informed decisions regarding vaccination are:

Providing leave or paid time off for employees to get vaccinated;
Ensuring employees have access to up to date and reliable information about vaccination; and
Where employees do not wish to be vaccinated or don’t yet have access to vaccinations, allowing employees to explore other options, including alternative working arrangements; and
Allowing employees to utilise sick leave if they feel unwell following a vaccination.

Under the National Employment Standards, an employee is not usually entitled to use their sick leave to be vaccinated against COVID-19, as sick leave is only available when an employee is unfit for work because they are sick or injured.[10] However, an award, enterprise agreement, registered agreement, employment contract or workplace policy may include additional rules regarding sick leave.

Other employers should take a leaf out of the book of the Aulich Partners. We Aulich employees are being encouraged to book their vaccine if they are able and are being provided with paid leave to attend vaccination appointments. As business operators our Partners see the importance of ensuring our staff are healthy and safe and see the long-term value in a fully vaccinated workforce. In order to stop the spread and bring the virus under control, it is integral for employers to have open conversations with their employees to encourage compliance with public health directions and allow flexibility for people to be vaccinated.

[1] Melissa Clarke, ‘Can employers make COVID-19 vaccination mandatory?’, ABC News (online, 13 August 2021) <https://www.abc.net.au/news/2021-08-13/can-employers-make-covid-vaccination-mandatory/100373416>.

[2] Fair Work Commission, ‘COVID-19 vaccinations: workplace rights and obligations’, Fair Work Ombudsman (Web Page) <https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations >.

[3] Fair Work Commission, ‘COVID-19 vaccinations: workplace rights and obligations’, Fair Work Ombudsman (Web Page) <https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#lawful-and-reasonable-directions-to-get-vaccinated >.

[4][4] https://www.covid19.act.gov.au/act-status-and-response/act-public-health-directions

[5] Public Health (Lockdown Restrictions) Emergency Direction 2021 (No 1).

[6] Fair Work Commission, ‘COVID-19 vaccinations: workplace rights and obligations’, Fair Work Ombudsman (Web Page) <https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#lawful-and-reasonable-directions-to-get-vaccinated >.

[7] Fair Work Commission, ‘COVID-19 vaccinations: workplace rights and obligations’, Fair Work Ombudsman (Web Page) <https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#disciplinary-action-for-refusal>.

[8]Fair Work Commission, ‘COVID-19 vaccinations: workplace rights and obligations’, Fair Work Ombudsman (Web Page) < https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#disciplinary-action-for-refusal>.

[9] Fair Work Commission, ‘COVID-19 vaccinations: workplace rights and obligations’, Fair Work Ombudsman (Web Page) <https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#lawful-and-reasonable-directions-to-get-vaccinated >.

[10] Fair Work Commission, ‘COVID-19 vaccinations: workplace rights and obligations’, Fair Work Ombudsman (Web Page) <https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#lawful-and-reasonable-directions-to-get-vaccinated >.

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No jab, no play, no job today