Michael’s Corner
Article 013
COVID-19 VACCINES AND THE WORKPLACE
For the guidance of issuing mandated vaccines in the workplace, the Fair Work Ombudsmen has provided a guide on workplaces as a structure.
- Tier 1 work – where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine 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 coronavirus (for example, employees working in health care or aged care).
- Tier 3 work – where there is interaction or likely interaction between employees and other people such as customers, other employees, or the public in the normal course of employment (for example, stores providing essential goods and services).
- Tier 4 work – where employees have minimal face-to-face interaction as part of their normal employment duties (for example, working from home).
Where the employee sits in the tiers is depends upon it being a lawful directive for the employee to be vaccinated.
Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable will be fact dependent and needs to be assessed on a case-by-case basis.
For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).
A range of factors may be relevant when determining whether a direction to an employee is reasonable. Things to take into consideration include:
- the nature of each workplace (for example, the extent to which employees need to work in public-facing roles, whether social distancing is possible and whether the business is providing an essential service)
- the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers, or other members of the community
- the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant.
- work health and safety obligations
- each employee’s circumstances, including their duties and the risks associated with their work
- whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
- vaccine availability.
There needs to be consultation with employees when implementing a COVID-19 vaccination policy.
For example, staff that cross the border from NSW into QLD would be reasonable to expect those employees to be vaccinated. Now Victoria is implementing the same for border crossings from NSW into Victoria.
The reasons would be covered under tier 1, as they have an increased risk by going into a Federally declared COVID-19 hotspot. Also, the state government of Queensland has mandated vaccinations as of 21 August 2021. South Australia from 12 September 2021 Victoria from 23 September 2021.
Two clauses from above and again shown below set out the lawful reasons for requiring an employee to be vaccinated.
Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable will be fact dependent and needs to be assessed on a case-by-case basis.
For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).
As this is a major change, consultation with the employees must be canvassed, and reasonable employee views must be considered. What is considered reasonable is that “I have a medical condition to prevent me from having AZ” ( see the GP to provide a medical certificate). What is unreasonable is, “I just don’t want it because I don’t know what is in it“.
What happens if an employee refuses to be vaccinated?
If an employee refuses to be vaccinated (contrary to a specific law, agreement or contract that requires vaccination, or after receiving a lawful and reasonable direction), an employer should, as a first step, ask the employee to explain their reasons for refusing the vaccination.
Suppose the employee gives a legitimate reason for not being vaccinated (for example, the employee has an existing medical condition that means vaccination is not recommended for the employee). In that case, the employee and their employer should consider any other options available instead of vaccination. This could include alternative work arrangements.
Whether disciplinary action is reasonable will depend on the circumstances. Employers are encouraged to discuss options with their employees based on their individual workplaces.
Can an employer take disciplinary action if an employee refuses to get vaccinated?
An employer may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of:
- a specific law, or
- a lawful and reasonable direction requiring vaccination.
Before taking any action, an employer should talk to the employee and discuss the employee’s reasons for not wanting to get vaccinated. For example, the employee may have a medical condition that means vaccination is not recommended.
Whether an employer can take disciplinary action will depend on the individual facts and circumstances. To work out if and how an employer can take disciplinary action, employers should consider the terms, obligations, and rights under any applicable:
- enterprise agreement or other registered agreement
- award
- employment contract
- workplace policy
- state or territory public health order.
Employers don’t otherwise have the power to suspend employees without pay unless an enterprise or other registered agreement, award or employment contract allows them to. Employees have various protections against being dismissed or treated adversely in their employment. Employers should make sure that they follow a fair process and have a valid reason for termination, or they may breach unfair dismissal or adverse action laws under the Fair Work Act.
Employers should also consider getting legal advice in these situations.
Can an employer require an employee to provide evidence that they have been vaccinated?
Suppose an employer has provided a lawful and reasonable direction to be vaccinated for coronavirus, and an employee complies. In that case, the employer can also ask the employee to provide evidence of their vaccination.
An employer should also make sure that a requirement to provide evidence is lawful and reasonable. As stated above, whether a direction would be lawful and reasonable depends on all the circumstances. If it is unclear whether a direction or the employee’s refusal is reasonable, employers should not take disciplinary action lightly and seek legal advice.
An employer may ask to view evidence of an employee’s vaccination status without raising privacy obligations provided they do not collect (i.e., make a record or keep a copy of) this information. An employer should not collect vaccination status information from an employee unless the employee consents and the collection is reasonably necessary for the employer’s functions and activities. However, consent to the collection is not required if the collection is required or authorised by law (for example, a public health order applies or where the employer must meet their obligations under WHS laws.
CHANGES TO CASUAL EMPLOYEES
Casual Employment Information Statement
Employers must give this document to new casual employees when they start work. Transitional rules apply to existing employees.
Before 27 September, all casual employees of big businesses need to ensure they all receive the Casual Employment Information Statement.
This statement explains the meaning of casual employment and the rights for casual employee’s to convert to full and part-time employment.
There are two areas in which an employer does not have to offer conversion from casual to part/full-time employment, and they are:
- There are reasonable grounds for them not to.
- The employee is not eligible.
Link to the information statement.
Another Landmark Decision for Employers
On 4 August 2021, the High Court handed down its decision in the landmark case of WorkPac v Rossato & Ors [2021] HCA 23 (WorkPac v Rossato). In its decision, the High Court found that Mr Rossato was a casual employee for the purpose of the Fair Work Act 2009 (FW Act) and Workpac’s Enterprise Agreement, and, as such, Mr Rossato was not entitled to paid annual leave, personal leave, and compassionate leave under the FW Act nor entitlements for permanent employees under the applicable Enterprise Agreement.
Please note that this is general advice for information only. Any application of legislation and/or Industrial Relations or contractual requirements may require professional advice to suit your circumstances. If you have a question for Michael’s team, email us at [email protected] or sign-up for a Buzz Session…