An Employer’s Guide to the COVID-19 Vaccine Rollout
With the COVID-19 vaccination rollout high on the agenda for Victorians and the rest of the nation, there’s been some confusion surrounding the legal rights and obligations of Employers. Today, we’re here to break down some of your questions and provide a sense of clarity to a somewhat precarious area of employee relations.
Here’s the top questions we’ll be answering:
Can I require employees to be vaccinated?
What happens if an employee refuses to get vaccinated?
Can I refuse to hire someone who is not vaccinated?
Do I need to provide time off work?
Can employees use sick leave to get the vaccine?
What does Melbourne HR recommend?
Can I require employees to be vaccinated?
In most circumstances, no, an employer has no entitlement to require or demand their existing workforce to get vaccinated against the coronavirus. Vaccination is not mandatory by law for most industries and workplaces across the board.
There are, however, a few instances whereby an employer can require their workforce to be vaccinated. If you answer ‘yes’ to any of these questions, you may be allowed to mandate vaccination:
Is there a specific law in place that requires an employee to be vaccinated? (For example, identified high-risk workplaces and industries). Stay tuned in to your state government public health orders – you will need to comply with any public health orders that apply to you and your business.
Does your enterprise agreement, other registered agreement, or employment contract stipulate the obligation of vaccinations?
Do the particular circumstances of your workplace make the request for vaccination appear reasonable? The Fair Work Commission has expressed views that vaccination may be an inherent requirement of employment, subject to the nature of the role and workplace.
Further considerations
As an employer, you should always investigate the reasons behind an employee's reluctance or refusal to be vaccinated. An employee may have a lawful reason for their refusal (i.e. medical or religious), which needs to be taken into account.
In circumstances where the employer has the right to mandate the vaccine, but an employee refuses on the grounds of a medical ailment or religious belief, it becomes a far more complex matter. As an employer, you need to consider how anti-discrimination laws come into play, and what boundaries you may be crossing when enforcing the vaccination on your workforce.
Ultimately, you need to make a judgement call and take into consideration all these factors when requiring your workforce to be vaccinated.
What happens if an employee refuses to get vaccinated?
If an employer seeks to mandate the COVID-19 vaccine in the workplace, the direction must be justified as 'lawful and reasonable'. This direction is more likely to be viewed as lawful and reasonable in the limited circumstances where vaccination is a legal requirement.
In the scenario whereby an employer has the right to mandate the vaccine and the employee has a lawful reason to refuse the vaccine, you as the employer should consider alternate arrangements available other than the vaccination.
Fair Work specifies that an employer may be able to take disciplinary action towards vaccine refusers, including termination of employment, if it is outlined in one of the following documents:
Enterprise agreement or other registered agreement
Employment contract
Workplace policy
Public health order
It is highly recommended that employers get additional legal advice if they are considering disciplinary action. It is a sensitive issue; employers must proceed with caution before any form of action is taken.
Can I refuse to hire someone who is not vaccinated?
Although you may not be within your right to require your existing workforce to be vaccinated, as an employer in Australia, you can decide not to offer employment to a candidate given their COVID-19 vaccination status.
However, as stated above, you must be aware of any associated risks of denying employment to an individual who may have a valid reason for not being vaccinated.
Do I need to provide time off work?
Given the vaccine is not currently mandatory, the vast majority of employers are not obligated to provide their employees time off work to receive the vaccination.
In the limited circumstances where you can require your employees to be vaccinated against the coronavirus, you should:
Cover an employee's travel costs
If the vaccination appointment is during work hours, allow them to attend the appointment without loss of pay
Another factor to consider is that employment contracts, workplace policies and individual agreements may lay out the company's own set of rules concerning vaccinations and time off work (with or without pay). You must review these documents before you start making decisions surrounding an employee's right to time off work for the COVID-19 vaccination.
Although, you may not be obligated to provide leave from work for the vaccination, the team at Melbourne HR suggest you collaborate with your employees, creating arrangements that allow your workforce to feel supported in their decision to get vaccinated.
The following are some suggestions that you may offer your employees:
Accepting unpaid leave requests
Allowing employees to start work later or finish earlier
Initiate working from home to allow employees to attend their local vaccination centre
Can employees use sick leave to get the vaccine?
According to the National Employment Standards, getting vaccinated for COVID-19 does not fall under sick leave. However, standards set in individual enterprise agreements, other registered agreements, employment contracts and workplace policies may have additional rules surrounding sick leave.
An employee is within their right to take sick leave if they feel unwell AFTER being vaccinated against the coronavirus.
What does Melbourne HR recommend?
With or without the vaccine, there are still measures that you as an employer can implement to encourage a safe and healthy workplace. Some of these measures are as follows:
Implement effective control measures at the workplace to reduce COVID-19
Provide verified information to employees about the benefits and risks of the COVID-19 vaccination
Provide training to ensure employees are properly informed of what they must do to reduce the spread of COVID-19 in the workplace
Encourage employees to speak to their doctors if they have any concerns about getting the COVID-19 vaccine
The regulations surrounding the COVID-19 vaccination are constantly changing. Make sure to visit the Fair Work website for the most up-to-date rules.
If you have any questions about your rights as an employer, or need extra HR support during this unprecedented time, contact us using the details below:
Call: 1300 784 687
Emma Weeks is a HR Consultant at Melbourne HR.
Edited by Nicole Torrington, Marketing Manager at Melbourne HR.