What are my rights and obligations as an employer regarding COVID-19 vaccinations?

There are a number of laws which employers should be aware of.

Public Health Orders
There are currently no public health orders requiring workers on dairy farms to be vaccinated against COVID-19.

If such orders are subsequently published this advice will be updated.

Work Health And Safety Laws require employers to do everything reasonably practicable to ensure the health and safety of workers. This requires employers to assess a risk and put in place suitable measures to eliminate the risk or if this is not practicable to minimise the risk.  What is reasonably practicable may change from time to time.

At the moment, the COVID-19 vaccine is not available for the majority of Australians and there is currently insufficient evidence about the effectiveness of the COVID-19 vaccine on transmission of the virus.  It is therefore unlikely that a requirement for all staff to be vaccinated would be regarded as being a reasonably practicable measure at this stage.

It is therefore unlikely that an employer would be found to have breached their work health and safety obligations by not requiring employees to be vaccinated.

What we do know is that vaccine is only one of a number of measures to minimise the risk of COVID-19 infection. There are other measures which we know are also effective such as mask wearing, handwashing and other sanitisation measures and social distancing.

Whether a measure will be sufficient to eliminate or minimise a risk is dependent upon the circumstances and whether the environment is a high risk environment. On the dairy farm, there are clearly times when social distancing will be difficult but there may be other control measures which can be implemented.

Industrial laws
Employers are able to require employees to follow lawful and reasonable directions. Whether a direction is lawful and reasonable will depend on the circumstances and the situation at the individual workplace. The employer’s response under their work health and safety obligations is relevant in determining what is lawful and reasonable as are the terms of awards and employment contracts.

Employers should first consider whether there are other measures which can be taken in the workplace other than vaccination.

If employers wish to require employees to be vaccinated they should develop a comprehensive workplace policy in consultation with their employees and as a part of this consultation address any issues of concern that employees may have. The policy should consider and address the limitations of other measures to control the spread of COVID-19 in the particular workplace and whether vaccination is an inherent requirement of the job.

Whether or not employers can enforce such a policy will depend upon the reasons given by the individual employee not to be vaccinated and the particular workplace environment.  Employers should seek legal advice before disciplining an employee or terminating their employment for refusal to be vaccinated.

There is currently a case before the Fair Work Commission which is looking at the issue of whether a direction by an employer for an employee, working in home care of the elderly, to have a flu vaccination was a lawful and reasonable direction.

A decision is expected sometime in April and this information will be updated at that time. (Maria Corazon Glover v Ozcare)

Discrimination Laws
Both the Fair Work Act and the federal anti-discrimination laws are also relevant.

The Fair Work Act prevents employers from discriminating against employees and prospective employees on the basis amongst other things of pregnancy, religious belief or physical disability. Conscientious objectors could also fall into this category.

Employees who object to vaccination on grounds such as these would have the right to bring an action against the employer if they are disciplined or have their employment terminated for refusal to be vaccinated.  Similar actions can be brought under the anti-discrimination laws.

Further information

• Fair Work
• Anti-discrimination laws – visit the Human Rights Commission
• Safe Work Australia
• State Work Health and Safety bodies