Vaccination in the workplace

With increasing numbers of employers mandating COVID-19 vaccination, MLC employment solicitors answer some common questions for employees around vaccines, mandates and returning to workplaces after lockdown.

Does an employer need to consult when implementing a workplace policy about coronavirus vaccinations?

• You should always check your employment contract to see if there is a policy in place around vaccinations.
• Some workplaces that are covered by a Modern Award or enterprise agreement have consultation clauses which require employers to consult with employees when implementing significant workplace changes, such as a new workplace policy around vaccination.
• Under work health and safety laws, employers have to consult with Health and Safety representatives about control measures to address the implementation of a vaccination policy.

If your employer is bringing in a new policy, and you are unsure of what it means for you, it is always best to get legal advice on the policy.

Can I refuse to go to work because a co-worker isn’t vaccinated against COVID-19?

• It is unlikely that you can refuse to attend your workplace on the basis that another co-worker has not been vaccinated against Covid-19, however:
  • While some industries and workplaces may require employees to be vaccinated from COVID-19, vaccination may not be mandatory for every workplace
  • Co-workers who are not vaccinated against COVID-19 may also have a legitimate reason to not be vaccinated (e.g. Medical reason).
• If you do refuse to attend your workplace because another co-worker is not vaccinated against Covid-19, your employer may be able to direct you to attend your workplace.
• If you have concerns about the safety of the workplace you should raise these concerns with your employer.

Do I have to get vaccinated to go to work?

You can only be required to be vaccinated where:

• 1. There is a specific law requiring you to be vaccinated – for example the NSW Government has issued public health orders requiring COVID-19 vaccination for workers in various industries (e.g. quarantine workers, transportation workers, airport workers, aged care workers, health care workers); or
  2. An enterprise agreement, industry award or employment contract requires you to be vaccinated – you should check your award or agreement to see if the terms of the award or agreement apply to Covid-19 vaccinations
  3. It would be lawful and reasonable for an employer to require you to be vaccinated
     • Whether it is reasonable for an employer to require an employee to be vaccinated against COVID-19 is assessed on a case-by-case basis
     • Any direction by an employer to require you to be vaccinated needs to comply with an employment contract, industry award and any legislation that applies
     • Whether a direction to require you to be vaccinated is reasonable depends on a number of factors:
       • Nature of the workplace
       • 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 the community
       • Work health and safety obligations
       • Whether you have a legitimate reason for not being vaccinated
       • Vaccine availability

Can my boss fire me for not getting vaccinated?

• An employer can take disciplinary action against you if your refusal to be vaccinated is a breach of a specific law, or a lawful and reasonable direction requiring vaccination.
• Whether the direction to require vaccination is lawful and reasonable will depend on the individual facts and circumstances.
• An employer cannot terminate your employment on the basis of your refusal to get the Covid-19 vaccine if they have not given a lawful or reasonable direction.
• Employers also must still abide by fair process in terminating your employment if they are dismissing you on the basis of your refusal to get the Covid-19 vaccine.
• An employer can only stand you down in certain circumstances, and it is unlikely that an employer can stand you down if you refuse to get vaccinated.

If you are unsure about what your employer is asking of you, or what your rights are in relation to needing a vaccination in the workplace, give Marrickville Legal Centre a call on 02 9559 2899 or submit an enquiry to speak to our General Legal Service or Youth Legal Service NSW below.