• Angela Costin

Covid-19: Vaccination and the workplace

Updated: Mar 2

With vaccinations now being administered in Australia, all need to consider what this means for workplaces.

Whilst employees must abide by lawful and reasonable directions of their employer, employers have a duty to provide a safe working environment under workplace health and safety laws, including a covid-safe environment where the risks of someone contracting the virus are minimised. This duty not only applies to employees, but also independent contractors, clients and visitors to the workplace. To help achieve this, some employers may wish to direct employees to be vaccinated. The legality and enforceability of such a direction during a pandemic is yet to be tested and will no doubt depend on the industry and other issues including the terms of employment contracts. Whilst there is currently no law giving employers the power to mandate employee vaccinations in any industry, we can expect the release of workplace regulations and state public health orders to deal with the uncertainty, bearing in mind that the federal government has already said vaccinations will not be compulsory.

High risk settings such as hospitals and aged care settings are likely to want to mandate vaccinations and given the vulnerability of those they work with this is likely to be considered a reasonable direction. Employees in high-risk sectors who refuse to be vaccinated without medical grounds or an exemption, depending on the circumstances, may arguably give their employers a valid reason to dismiss them. However, the same may not be said for office workers such as those in the legal or accounting industries, where the use of existing control measures such as masks and social distancing may be reasonably sufficient to minimise the risk of exposure.

Employers will need to carefully consider and balance the risks of an outbreak in their workplace and the potential ramifications, versus the possibility of discrimination claims and other employee initiated workplace litigation. Employers who terminate an employee for refusing to be vaccinated may face an unlawful or unfair termination claim. Similarly, employers should be cautious about making vaccination a condition of entry for customers, as this could breach privacy and anti-discrimination laws.

If all goes to plan, some of us will soon be vaccinated and others won’t be until the end of the year. How employers manage this in a modern workplace has no precedence. Will vaccinated workers be required to take on more front of house tasks, whilst unvaccinated employees continue to work from home? How is this balanced with those employees who require (and may be entitled to) more flexibility and need to work from home because of other commitments? Again, there is potential for discrimination or unfair treatment claims which will need to be carefully managed.

The months ahead will be challenging, but as they say, we are all in this together.

If you have any queries in relation to Covid-19 requirements or other workplace matters please contact Angela Costin, Executive Counsel at Millens on 9817 6530 or acostin@millens.com.au.

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