There are many considerations that employers need to work through in terms of mandatory COVID-19 vaccination of employees. FIA Legal Partner, Kingston Reid, have put together a summary of the key considerations to help employers navigate managing COVID-19 vaccinations in your workplace.

1. Who is mandating the vaccination?

a. If it is the employer, the direction needs to be both lawful and reasonable. Any direction needs to (at a minimum) be based on WHS risk considerations, implemented following consultation and be reasonable in terms of the timeframe by which employees must be compliant and any medical contraindication;

b. If the requirement is imposed by way of a Public Health Order (or equivalent), be clear about precisely who is covered by the requirement.

If in doubt, seek advice before taking any further steps.

2. Socialise the requirement with employees in advance (if possible)

If time permits, consult with the workforce about the WHS benefits of being vaccinated before issuing more formal communications to them about the requirement. This will increase the likelihood of identifying potential objections at an early stage and having an opportunity to have further discussions with those who object or express reservations.

3. Does the employee have a permitted exemption (also known as a medical contraindication)?

a. If valid evidence is provided – consult with the employee about the implications of the contraindication. This needs to factor in the controls that you have identified as part of your COVID-19 risk assessment process;

b. If the evidence provided is unclear / not satisfactory:

i. request further information from the employee and, if needed, consider directing them to attend an independent medical examination;

ii. determine whether they are to remain on leave pending resolution (and, if so, what kind of leave) or whether alternative arrangements will be put in place to enable them to perform work (taking into account the controls that you have identified as part of your COVID-19 risk assessment process)

4. What if an employee is not exempt and is failing or refusing to be vaccinated?

a. consider the employee’s grounds for not complying and consult with them about those grounds;

b. if there is scope to allow the person an exemption, consider whether or not to grant an exemption and the terms of that exemption;

c. if there is no scope to allow an exemption, or an exemption is not to be granted:

i. consider giving the person a limited period of time to comply and determine what leave arrangements will be put in place during that period;

ii. if the individual remains non-compliant:

1. if the employer is mandating the vaccination – explore other options (for example, extended leave of absence with no guarantee of being able to return; arranging a telehealth appointment with a GP to explain the pros and cons of vaccination) and, if considered appropriate, commence a disciplinary process;

2. if the vaccination requirement is imposed by PHOs – consider whether the employee’s non-compliance is sufficient to bring the employment relationship to an end.

5. Privacy considerations

a. Information about a person’s vaccination status is sensitive health information and needs to be treated as such in accordance with the Privacy Act and the employer’s privacy policy;

b. An employer can require an employee to disclose information about their vaccination status if:

i. such disclosure is required under the relevant PHOs; or

ii. the information is reasonably necessary for one or more of the employer’s functions or activities (e.g. to assist in a WHS risk assessment, to discharge other WHS obligations, to ensure compliance with a PHO or vaccination policy)

c. In most cases (other than when required by law or a PHO), the employee will need to give their consent (express or implied) to the disclosure;

d. When requesting proof of vaccination status from an employee, the employee should be informed of:

i. the reason for the request

ii. what is being requested (for example, is it a copy of an immunisation status or COVID vaccination certificate)?

iii. the consequences if the employee refuses to provide the information

iv. whether the information will be disclosed to any third parties

Dominic Fleeton
Partner
+61 3 9958 9616
dominic.fleeton@kingstonreid.com

Christa Lenard
Partner
+61 2 9169 8404
christa.lenard@kingstonreid.com