The recent NSW Government public health orders requiring vaccination of certain key workers have saved many employers from tough decisions about vaccinations and their workers. Nevertheless, many workplaces are not covered by the orders where employers would like to ensure that their employees are vaccinated for COVID-19.
Of course, there is no dilemma if all your employees have already been vaccinated voluntarily or done so soon, and this may often be the case in small or family businesses. However, there will still be situations faced by many smaller companies where they will need to get professional advice regarding whether they can or should require their employees to be vaccinated.
As with all such things, it is not straightforward! You will have to consider a patchwork of different things as an employer. If the public health orders do not cover your industry, you may view that to ensure a safe workplace or reduce risk to customers; you will need to make vaccination compulsory for your workers.
Stop right there! Neither the NSW nor Commonwealth works health and safety authorities have signed off on any general power to make employees get vaccinated. The Fair Work Ombudsman has stated no such general power exists in employment law. Nevertheless, a requirement for a particular worker or category of worker to be vaccinated may be a ‘lawful and reasonable direction’ from an employer in the circumstances of a specific workplace. Not putting themselves and others at risk may also be an ‘inherent requirement’ of the job in some workplaces, where contact with each other or the public may pose a health risk.
Can you make COVID-19 vaccinations mandatory in your workplace?
It may not be a ‘lawful and reasonable direction’ if their work can be reasonably regarded as COVID-safe by using other means such as social distancing, masks, or even personal protective equipment.
Organisations may also have to make reasonable adjustments to an employee’s role to comply with work health and safety (WHS) laws and anti-discrimination laws for an employee who has provided medical contraindication evidence exempting them from being vaccinated.
An employer must also meet the consultation requirements in the Work Health and Safety Act 2011 (NSW) and any applicable Enterprise Agreement and make a genuine attempt to consult with workers and their union representatives before making vaccination mandatory before workers access a worksite.
Can an employer collect data on an employee’s vaccination status?
An employer subject to the Privacy Act 1988 (Cth) must comply with the Act’s requirements relating to sensitive personal information, including developing privacy policies and collection notices regarding collecting and retaining vaccination status data. It would be best to develop a company policy for managing data collected for COVID-19, including limiting information access to a few staff and for usage only for State and Federal health authorities.
The Privacy Act prohibits collecting health information unless it is reasonably necessary for one or more of the employer’s functions or activities and the employee’s consent to its collection or the collection is required or authorised by law. Examples include collecting vaccination status to ensure compliance with statutory obligations under work health and safety legislation or complying with a public health order.
Even if the Privacy Act does not cover your organisation, it may have similar obligations regarding health information collection under the Health Records And Information Privacy Act (NSW) 2002.
Can you dismiss an employee for not following a lawful and reasonable direction to be vaccinated?
Depending on whether the employee has a valid excuse, an employee’s refusal to comply with a lawful and reasonable direction may, in severe cases, comprise serious misconduct justifying summary dismissal. Serious misconduct is defined by the Fair Work Regulations 2009 (Cth) item 1.07 as including conduct that causes a severe and imminent risk to a person’s health or safety or the reputation, viability, or profitability of the employer’s business. It also includes the employee refusing to carry out a lawful and reasonable instruction consistent with their employment contract.
The case law suggests that courts scrutinise the specific situation closely and only allow sacking workers for failure to get vaccinated where transmission of the virus is an inherent risk of the job and where no other means of decreasing transmission is available or practicable.
Even if you have good reasons to require vaccination, you should carefully consider any actions regarding workers who have medical exemptions from vaccination because of certain underlying conditions or recent COVID-19 infection. Also, consultation with unions or affected employees will usually be required under Awards or Enterprise Agreements to help smooth the path.
An organisation with no solid basis for a workplace vaccination mandate may face an unfair dismissal claim or anti-discrimination claim from an employee sacked for non-compliance with the employee’s direction.
Can an employee refuse to attend your workplace because a co-worker is not vaccinated against the coronavirus?
An employer can direct an employee to attend the workplace if the direction is lawful and reasonable, depending on whether the employer has taken all reasonable steps to make the workplace safe.
In dealing with the potentially severe consequences of Covid-19 spreading at work, an employer must regard its primary duty of care under the Work Health and Safety Act 2011 (NSW) to protect the health and safety of an employee and other employees. A business owner’s duties include ensuring, as far as is reasonably practicable, the provision and maintenance of a work environment without risks to the health and safety of workers and others (sections 19 (2) and 19 (3) (a)).
Section 180 of the Corporations Act 2001 (Cth) requires company directors to exercise their powers with reasonable care and diligence, including consideration of the safety of staff and others at business premises.
Am I required by current public health orders to ensure that my employees are vaccinated?
Some categories of employees who work with vulnerable people, like childcare, aged care, disability, and healthcare workers, must be vaccinated with at least one dose and receive a second dose in the future. Even without the public health orders, it is likely that employers would have had the legal right to insist such workers be vaccinated simply because of the nature of the work. Some decided cases support this regarding both COVID-19 and influenza vaccination.
Other categories covered by public health order requirements for vaccination are workers involved in medical or quarantine transport, airport workers, quarantine workers, and some other workers providing services to those categories. Again, employers of these workers probably would have the legal right to insist that they be vaccinated, simply because of the nature of the work, even without the health orders. As is now notorious, an unvaccinated transport worker working with quarantined flight crews was the original case of the Delta variant of the virus in NSW.
Further to these categories, the current health orders also require some construction workers to have received one dose of vaccine and, in due course, receive a second dose and so forth, or else be regularly tested for COVID-19. Workers who live within a Local Government Area ‘of concern’ must comply with working on any construction site in Greater Sydney. Employers may have had legal problems insisting on vaccination without the public health order because the work is not necessarily in confined spaces, nor is contact with the public or vulnerable people unavoidable. However, in the context of a spreading pandemic, it might have been possible for employers to insist on vaccination if workers were in confined spaces or roving from site to site. To see the Government’s detailed list of workers who must be vaccinated, go to
What things should I consider including in my company’s employment agreements?
5 general tips for updating your company’s employment agreements to deal
with pandemic related workplace issues are:
- Update your template employment contracts to include provisions for mandatory vaccination when an appropriate control to help minimise the risk of contracting COVID-19 at work or relevant to the proper performance of the role in question, subject to appropriate exemptions as outlined above;
- Update your contracts of employment to include an employee’s general obligation to perform other duties such as the employer reasonably directs from time to time;
- Consider including a requirement that the employee work at alternative locations reasonably required;
- Check if you have a practical and reasonable stand-down provision in the enterprise agreement or each contract of employment covering a period an employee cannot usefully be deployed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible; and
- Introduce workplace policies dealing with pandemic situations, including workplace consultation per the relevant industry Award.
Please get in touch for further information on how Stevensen Business Lawyers can assist your company with any employment law matters.
Each company would be differently impacted by the NSW Government public health orders and shutdowns. You may need advice tailored to your specific situation.
Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth)
Fair Work Regulation 2009 (Cth)
Privacy Act 1988 (Cth)
Work Health and Safety Act 2011 (NSW)
Vaccination Mandate Cases:
- Teslime Kuru v Cheltenham Manor Pty Ltd as trustee of the Cheltenham Manor Family Trust T/A Cheltenham Manor Pty Ltd  FWC 949, 24 February 2021,
- Bou-Jamie Barber v Goodstart Early Learning  FWC 2156, 20 April 2021,
- Maria Corazon Glover v Ozcare  FWC 2989, 26 May 2021,
- Jennifer Kimber v Sapphire Coast Community Aged Care Ltd  FWCFB 6015, 27 September 2021,
- Construction, Forestry, Maritime, Mining and Energy Union and Another v Mt Arthur Coal Pty Ltd trading as Mt Arthur Coal  FWCFB 6059 (3 December 2021),
- Construction, Forestry, Maritime, Mining and Energy Union & Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA & Ors  FWC 81 (21 January 2022),
- Construction, Forestry, Maritime, Mining and Energy Union v Visy Pulp & Paper Pty Ltd  FWC 399 (25 February 2022).