As the COVID-19 vaccine rollout begins in Australia, many employers and employees have questions regarding their legal rights and obligations when it comes to the vaccine and the workplace.

Are employee’s legally required to get the vaccine? Can employers make it mandatory for their workers to get the vaccine? What happens if an employee refuses to get the vaccine? Can an employer ask their employee’s (or future potential candidates) to provide evidence of their vaccination?

Currently, the COVID-19 vaccine rollout is completely voluntary, although the intent is to vaccinate as many Australians as possible. This means, there are no current laws or public health orders that allow employers to require their employees to get vaccinated, except in limited circumstances.

Below are just some of the most common questions related to the COVID-19 vaccine and the workplace. If you have any questions related to your specific circumstances, seek independent legal advice.

Can employers’ force employees to get the COVID-19 vaccine to protect themselves against the coronavirus?

There are no current laws or public health orders that permit employers to force their employees to get the COVID-19 vaccine.

There are, however, limited circumstances where it may be legal and reasonable for an employer to direct their workers to get the COVID-19 vaccine. Some of the deciding factors an employer must take into account include:

  • The level of risk of exposure to COVID-19 in their workplace
  • The unique circumstances of each individual worker
  • Whether a specific current law or public health order permits them to do so
  • Whether a specific employment agreement permits them to do so

Employers must also consider whether an employee has a legitimate reason to refuse the COVID-19 vaccine. For example, a legitimate health reason. They must also be mindful of the current discrimination laws when directing their employees to be vaccinated.

In addition, employers must assess the validity of their request for employees to be vaccinated against the coronavirus on a case-by-case basis.

If insure, employers and employees should seek independent legal advice.

What happens if an employee refuses to the get the COVID-19 vaccination?

Unless an employer has a lawful and reasonable reason to make the COVID-19 vaccine mandatory in their workplace, generally speaking, they cannot take disciplinary action against an employee who refuses the COVID-19 vaccine.

Whether such disciplinary action is lawful and reasonable will depend on the unique circumstances.

The employer should, first, ask the employee why they are refusing the COVID-19 vaccine. If the employee has a legitimate reason, both the employer and employee should discuss alternative working arrangements outside of getting the COVID-19 vaccine.

Furthermore, unless stated in an employment agreement, award, or employment contract, an employer cannot legally suspend an employee’s pay – or have the employee stand down – if the employee refuses to be vaccinated against the coronavirus.

Only under limited circumstances can an employer take disciplinary action against an employee that refuses to get the COVID-19 vaccine.

Can employers ask employee’s to provide evidence that they have received the COVID-19 vaccine?

If an employer has given a lawful and reasonable direction for employees to be vaccinated against the coronavirus, an employer could ask their employees to provide evidence of the vaccination.

If, however, the employer does not have a lawful and reasonable direction for employees to be vaccinated against the coronavirus, an employer cannot force their employees to provide evidence of the vaccination.

Likewise, an employer – if their request to make the COVID-19 vaccine mandatory in the workplace is lawful and reasonable – could ask their employees, who refuse the vaccine, to provide evidence as to why they cannot be vaccinated.

Again, it depends on the circumstances of the workplace, and the circumstances of each worker.

Can an employee refuse to attend the workplace if another employee is not vaccinated against the coronavirus?

Unless a current law or public health order says otherwise, it is unlikely that an employee can refuse to attend the workplace because an employee is not vaccinated against the coronavirus.

This is because, as of this writing, the COVID-19 vaccine rollout is mandatory, and most workplaces do not have a lawful or reasonable direction to make the COVID-19 vaccine mandatory. In addition, the other employee may have a legitimate reason not to be vaccinated, such as a medical reason.

If an employee is unsure whether it is lawful and reasonable to refuse to attend the workplace because one or more employees are not vaccinated against the coronavirus, they should seek independent legal advice.

Ideally, if they have any health or safety concerns in their workplace, they should speak to their employer as soon as possible. Employers should also help ease an employee’s concerns by outlining the steps taken to protect the health and safety of their workers.

More information

These are just some of the many legal rights and obligations that both employers and employees should be aware of in regards to the COVID-19 vaccine and its relationship with the workplace.

For more information about the COVID-19 vaccination in the workplace, refer to the Fair Work Ombudsman.

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