Since the onset of the coronavirus pandemic, we’ve had to make changes, both big and small, to our everyday lives. To reduce widespread community transmission, mandatory vaccinations are under consideration or already being implemented in some of Australia’s major industries.
The following article summarises a range of existing sources on mandatory COVID-19 vaccinations in the workplace. You can click on any of the links below to access the full-text version of the articles mentioned.
The Fair Work website is a great place to visit if you wish to learn more about workplace entitlements and obligations for COVID-19 vaccinations.
According to Fair Work Australia, employers may require their employees to be vaccinated in certain circumstances. These circumstances include where:
A specific law requires mandatory employee vaccination;
- The requirement is permitted by an enterprise agreement, registered agreement, or employment contract; or
- It would be lawful and reasonable for the employer to give their employees a direction to be vaccinated
- When considering making a mandatory vaccine requirement in the workplace, Fair Work advises employers to exercise caution and seek the appropriate legal advice.
This web page also provides additional information about the following areas of interest:
- Does an employer need to consult when implementing a mandatory vaccination policy workplace?
- Can an employee refuse to attend the workplace because a co-worker isn’t vaccinated?
- Can an employer require a prospective employee to be vaccinated before starting work?
- How does a requirement to be vaccinated interact with anti-discrimination laws?
- Can an employer take disciplinary action against an unvaccinated employee?
On this webpage, the Australian Human Rights Commission (AHRC) provides some general information on how a coronavirus vaccination requirement may interact with Australia’s anti-discrimination laws. The information reflects current anti-discrimination law, applicable case law and guidance issued by numerous government agencies.
As outlined by the AHRC, the need for a mandatory vaccination policy or conditions on staff should be assessed on a case-by-case basis and consider the position of vulnerable groups in the community.
The Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA) prohibit unlawful discrimination on the grounds of pregnancy, disability, and age in areas of public life such as employment. Accordingly, the AHRC encourages employers to be alert that a mandatory COVID-19 vaccination policy may engage the ‘indirect discrimination’ provisions under these Acts.
This resource also provides extensive guidance on the most frequently asked questions relevant to this topic, including:
- Can it be unlawful discrimination for a business or service provider to refuse to provide goods, services, or facilities to people who are not vaccinated?
- Can it be unlawful discrimination for an employer to require that its employees be vaccinated if it goes against their religious belief?
- Can it be unlawful discrimination for an employer/business owner/service provider to require medical evidence as to why an employee cannot be vaccinated?
In this article, Allen’s provides insight on the various legal issues surrounding a coronavirus vaccine mandate in the workplace.
The leading international law firm has consulted with cross-practice experts to cover the employment, safety, privacy, regulatory, insurance and liability considerations that confront employers navigating this evolving space.
Based on the various legal obligations identified, Allens also provides a series of suggested ‘next steps’ for employers to keep in mind.
(4) Office of the Australian Information Commissioner – Vaccinations and my privacy rights as an employee
This article assists employees to understand how the Privacy Act 1988 (Privacy Act) will apply to protect their personal information relating to COVID-19 vaccinations in the workplace.
Depending on their place of employment, an employee may be required to provide evidence of their vaccination status at their employer’s direction. As a general rule, an employer must first seek the employee’s consent to collect vaccination status information. Unless an exception applies, collecting this information must also be reasonably necessary for one or more of the employer’s activities.
Because this information is sensitive, the Office of the Australian Information Commissioner notes that employers must handle it in accordance with any applicable requirements or privacy protections set out in a relevant public health order.
By Kirra Griffin
Kirra Griffin is a final-year law student at Melbourne Law School. As our resident legal assistant, Kirra uses her specialised knowledge of the law to translate complex concepts into easily digestible information.