BS-19 Vaxxinations: Workplace Rights and Obligations

By Coronavirus Fairwork

While the Australian Government’s policy is that receiving a vaccination is free and voluntary, it aims to have as many Australians vaccinated as possible.

With Australia’s vaccine rollout continuing and the increasing availability of COVID-19 vaccinations, employers and employees are encouraged to work together to find solutions that suit their individual needs and workplaces. A collaborative approach in the workplace that includes discussing, planning and facilitating COVID-19 vaccinations is an important part of Australia’s vaccine rollout, because having a vaccine is one of the best ways to protect ourselves and our community against COVID-19.

Employers can support their employees by:

• providing leave or paid time off for employees to get vaccinated
• helping to ensure employees have access to reliable and up-to-date information about the effectiveness of vaccinations – Learn about COVID-19 vaccines on the Department of Health’s website
• where employees do not wish to be vaccinated, or don’t yet have access to vaccinations, exploring other options including alternative work arrangements.

In some cases, employers may be able to require their employees to be vaccinated against COVID-19. Employers should exercise caution if they’re considering making COVID-19 vaccinations mandatory in their workplace and get their own legal advice.

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

Employers may be considering whether a workplace policy about coronavirus vaccinations is necessary for their workplace.

Before implementing a new workplace policy or changing an existing policy about vaccinations, employers should consider their workplace and employees’ circumstances and whether they need legal advice about their obligations.

Most workplaces are covered by either an award, enterprise agreement or another registered agreement. All awards and enterprise agreements have a consultation clause requiring employers to consult with employees and any representatives when an employer intends to implement significant workplace changes. Some registered agreements, employment contracts or existing workplace policies may also require employers to consult. You can find more information about consultation and cooperation in the workplace here: Consultation and cooperation in the workplace – Best practice guides – Fair Work Ombudsman.

This means that before introducing or changing a workplace policy about vaccinations, employers should review any applicable award, agreement, employment contract or existing workplace policy to find out:

• whether they need to consult under that document (as well as needing to consult under work health and safety laws)
• who they need to consult with (including any employee representatives or unions)
• how they need to consult about the proposed workplace change.

Under work health and safety (WHS) laws, employers also have to consult with employees and their health and safety representatives (HSRs) about possible control measures to address WHS risks. This includes consideration of a new policy about coronavirus vaccinations or changes to an existing vaccination policy.

Employers must also provide employees and their HSRs a reasonable opportunity to express their views about the policy changes. Employers need to take these views into account when making a decision and advise employees and HSRs of their decision.

You can find more information on specific coronavirus WHS issues and consultation obligations under WHS laws from Safe Work Australia.

Do employees have to be paid for the time to get vaccinated against COVID-19?

Where an employer can require an employee to be vaccinated against coronavirus (for example, because they have a mandatory vaccination policy in place), the employer should cover the employee’s travel costs and give the employee time off work without loss of pay if the appointment is during work hours.

Employers should consider any applicable awards, agreements, employment contracts or workplace policies, in case they include rules about these types of issues.

Even where an employer doesn’t require their employees to be vaccinated against coronavirus, they can still discuss work adjustments, leave arrangements or incentives with their employees to support them getting vaccinated. These arrangements could include:

• requesting and taking leave
• starting work later or finishing early (to help employees to attend a vaccination appointment around work hours)
• working from home (to help an employee attend a local vaccination appointment)
• providing paid time off for their employees to get vaccinated against COVID-19.

Can an employee take sick leave to get vaccinated against COVID-19?

Employees can’t usually take sick leave to get vaccinated against COVID-19. This is because the entitlement to sick leave under the National Employment Standards is only available when an employee is unfit for work because they are ill or injured.

However, an award, enterprise agreement, other registered agreement, employment contract or workplace policy may include extra rules about using sick leave.

For more information about when sick and carer’s leave can be taken, go to Paid sick and carer’s leave.

Can employees take paid time off if they feel unwell after being vaccinated?

Full-time and part-time employees can use paid sick leave if they can’t work because they’re unwell after being vaccinated.

If a full-time or part-time employee runs out of paid sick leave, they may be able to agree with their employer to access other paid leave entitlements, like annual leave, or to make other arrangements like taking unpaid leave.

Employers should also consider their obligations under any award, enterprise agreement or other registered agreement, employment contract or workplace policy, which could include extra rules about sick leave.

Casual employees don’t get paid sick leave under the National Employment Standards. If a casual employee can’t work because they feel unwell after being vaccinated, they can agree with their employer to adjust their work arrangements, for example, by changing their shift day or time.

Under the Fair Work Act, all employees are protected from adverse action because they have exercised or proposed to exercise their workplace rights.

Find out more about:

• the rules for paid sick leave at Paid sick and carer’s leave
• taking annual leave
• the definition and entitlements of casual employees
• the minimum entitlements all employees get under the National Employment Standards
• protections at work.

Can an employee refuse to attend the workplace because a co-worker isn’t vaccinated against coronavirus?

Generally, it’s unlikely that an employee could refuse to attend their workplace because a co-worker isn’t vaccinated against coronavirus. The reasons for this include:

• vaccination isn’t mandatory for all employees and many workplaces won’t be able to require their employees to be vaccinated
• the co-worker may have a legitimate reason not to be vaccinated (for example, a medical reason).

If an employee refuses to attend the workplace because a co-worker isn’t vaccinated, their employer can direct them to attend the workplace if the direction is lawful and reasonable. Whether a direction is lawful and reasonable depends on all the circumstances.

If it’s unclear whether a direction or an employee’s refusal is reasonable, employers should consider seeking legal advice before taking disciplinary action.

If an employee has concerns about the safety of the workplace, they should raise their concerns with their employer as soon as possible. Employers should also consider sharing information about any steps they’ve taken to ensure a safe workplace, to help manage employee concerns.

Go to:

• Directions to return to work and the workplace for more information on directing employees to perform work
• Protection from discrimination at work for more information on discrimination protections
• Safe Work Australia or the relevant Commonwealth, state or territory work health and safety regulators for more information about work health and safety during coronavirus
• Consultation and cooperation in the workplace and Resolving workplace issues during coronavirus for information and resources about dealing with issues or conflicts in the workplace.

Requiring employees to be vaccinated

• Can an employer require an employee to be vaccinated?
• Lawful and reasonable directions to get vaccinated
• Can an employer require a prospective employee to be vaccinated before starting work?
• How does a requirement to be vaccinated interact with anti-discrimination laws?

Can an employer require an employee to be vaccinated?

Employers can only require their employees to be vaccinated where:

• a specific law (such as a state or territory public health order) requires an employee to be vaccinated (see Legislation and public health orders requiring vaccination against coronavirus)
• the requirement is permitted by an enterprise agreement, other registered agreement or employment contract (see Agreements or contracts relating to vaccinations), or
• it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis (see Lawful and reasonable directions to get vaccinated).

One or more of these circumstances can apply when an employer is requiring an employee to be vaccinated. For example, an employer could rely on a state public health order that requires their employee to be vaccinated to give the employee a lawful and reasonable direction not to work unless they are vaccinated.

Employers should also consider how protections for employees under anti-discrimination laws may apply. Learn more at How does a requirement to be vaccinated interact with anti-discrimination laws?

Employers should get their own legal advice if they’re considering making coronavirus vaccinations mandatory in their workplace.

Some employees may have questions or concerns about getting vaccinated. You can:

• visit the Department of Health for information about COVID-19 vaccines, answers to common questions about the safety and effectiveness of the vaccines, and promoting COVID-19 vaccination.
• visit COVID-19 vaccinations: resolving workplace issues for information and links.

Legislation and public health orders requiring vaccination against coronavirus

State and territory governments have made and may continue to make public health orders requiring workers to be vaccinated against COVID-19 in their state or territory. Employers and workers need to comply with any public health orders that apply to them.

The current public health orders requiring vaccination in various states and territories are outlined below:

• Australian Capital Territory
• New South Wales
• Northern Territory
• Queensland
• South Australia
• Tasmania
• Victoria
• Western Australia

We’ll continue to update our information if new public health orders or directions are issued by states or territories.

For information on other requirements and restrictions for businesses in each state and territory, see List of enforceable government directions during coronavirus.

 

Agreements or contracts relating to vaccinations

Some employment contracts or agreements may contain terms relating to vaccinations, including COVID-19 vaccinations. Employers and employees should check to see if any terms apply to COVID-19 vaccinations (for example, a term relating only to flu vaccinations won’t apply to COVID-19 vaccinations).

Employers may wish to consider including a term in employment contracts for new employees relating to COVID-19 vaccinations. Find out more at Can an employer require a prospective employee to be vaccinated before starting work?

Even where a contract or an agreement has a term about coronavirus vaccinations, employers and employees should consider whether the term complies with anti-discrimination laws. A term that is contrary to anti-discrimination laws isn’t enforceable. Find out more at How does a requirement to be vaccinated interact with anti-discrimination laws?

Lawful and reasonable directions to get vaccinated

Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable is fact dependent and needs to be assessed on a case-by-case basis. Just because it may be lawful and reasonable to give a direction to one employee, doesn’t mean it will automatically be lawful and reasonable to give the same direction to another employee or to all employees.

For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).

There are a range of factors that may be relevant when determining whether a direction to an employee is reasonable. Things to take into consideration include:

• the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service)
• the 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 employees, customers or other members of the community
• the terms of any public health orders in place where the workplace is located
• the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant (find out more at the Department of Health: statement from ATAGI)
• work health and safety obligations (find out more at Safe Work Australia)
• each employee’s circumstances, including their duties and the risks associated with their work
• whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
• vaccine availability.

When undertaking this case-by-case assessment, it may also be helpful as a general guide to divide work into 4 broad tiers:

• Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
• Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
• Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
• Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

A workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time.

The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus.

An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.

An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.

For employees performing Tier 3 work:

• where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable
• where community transmission of COVID-19 is occurring in an area, and an employer is operating a workplace in that area that needs to remain open to provide essential goods and services, a direction to employees to receive a vaccination is more likely to be reasonable.

Can an employer require a prospective employee to be vaccinated before starting work?

An employer may be able to require a prospective employee to be vaccinated against coronavirus.

Before requiring that a prospective employee be vaccinated before starting employment, employers should consider their obligations and responsibilities carefully, for example, under general protections or anti-discrimination laws.

Get more information on discrimination protections under the Fair Work Act at Protection from discrimination at work.

 

How does a requirement to be vaccinated interact with anti-discrimination laws?

It’s important that employers consider their obligations and responsibilities under anti-discrimination laws, which generally prohibit discrimination against employees in the workplace based on protected characteristics, such as disability.

Before requiring employees to be vaccinated, employers need to consider:

• Commonwealth, state or territory discrimination laws
• general protections provisions under the Fair Work Act.

Find out more about COVID-19 vaccinations and anti-discrimination laws in Australia at the Australian Human Rights Commission . Get more information on discrimination protections under the Fair Work Act at Protection from discrimination at work.

 

Refusing directions to be vaccinated

• Can an employee refuse to be vaccinated?
• What happens if an employee refuses to be vaccinated?
• Can an employer take disciplinary action if an employee refuses to get vaccinated?
• If an employee refuses to be vaccinated, can an employer require evidence about why they’ve refused?

Can an employee refuse to be vaccinated?

Some employees may have questions or concerns about getting vaccinated. You can find information about COVID-19 vaccines from the Department of Health  including answers to common questions about the safety and effectiveness of the vaccines.

An employee might refuse a direction to be vaccinated even if they are required to under a specific law, agreement or contract, or after receiving a lawful and reasonable direction. In these situations, an employer should ask the employee to explain their reasons for refusing the vaccination. An employee may have a legitimate reason for not being vaccinated. For example, the employee could have an existing medical condition that means vaccination is not recommended for them. Employees should speak to their doctor if they have concerns about receiving a vaccination because of a medical condition.

If you have concerns about the safety of COVID-19 vaccines:

• read Department of Health – Are COVID-19 vaccines safe? 
• call the National Coronavirus Hotline  to get reliable information from the Australian Government.

If the employee gives a legitimate reason for not being vaccinated, the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements, such as asking the employee to perform different duties or to work from home. Find out more at Alternative work arrangements.

Where an employee has a reason for not getting vaccinated, an employer may be able to request evidence of the reason for their refusal. Find out more at If an employee refuses to be vaccinated, can an employer require evidence about why they’ve refused?

In some circumstances where an employee refuses to be vaccinated, employers may be able to consider disciplinary action. Whether disciplinary action is reasonable will depend on the circumstances. Learn more about disciplinary action for refusing to be vaccinated at Can an employer take disciplinary action if an employee refuses to get vaccinated?

We encourage employers to discuss options with their employees depending on the circumstances of their individual workplace. Learn more about consultation and cooperation in the workplace.

Resolving workplace issues

If an employee has concerns about being required by their employer to be vaccinated, we encourage them to first discuss their concerns with their employer.

Issues in the workplace can usually be resolved quickly and effectively by an employer and an employee having a conversation.

Get guidance on resolving workplace issues at:

• COVID-19 vaccinations: resolving workplace issues
• Resolving workplace issues during coronavirus
• Consultation and cooperation in the workplace.

What happens if an employee refuses to be vaccinated?

If an employee refuses to be vaccinated (contrary to a specific law, agreement or contract that requires vaccination, or after receiving a lawful and reasonable direction), an employer should, as a first step, ask the employee to explain their reasons for refusing the vaccination.

If the employee gives a legitimate reason for not being vaccinated (for example, the employee has an existing medical condition that means vaccination is not recommended for the employee), the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements. Find out more at Alternative work arrangements.

Whether disciplinary action is reasonable will depend on the circumstances. For more information on disciplinary action for refusing to be vaccinated, see Can an employer take disciplinary action if an employee refuses to get vaccinated?

We encourage employers to discuss options with their employees depending on the circumstances of their individual workplace. Learn more about consultation and cooperation in the workplace.

Can an employer take disciplinary action if an employee refuses to get vaccinated?

An employer may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of:

• a specific law, or
• a lawful and reasonable direction requiring vaccination.

Before taking any action, an employer should talk to the employee and discuss the employee’s reasons for not wanting to get vaccinated. For example, the employee may have a medical condition that means vaccination is not recommended for the employee.

Whether an employer can take disciplinary action will depend on the individual facts and circumstances. To work out if and how an employer can take disciplinary action, employers should consider the terms, obligations and rights under any applicable:

• enterprise agreement or other registered agreement
• award
• employment contract
• workplace policy
• state or territory public health order.

If an employee refuses a direction to be vaccinated, it’s unlikely that their employer can stand down the employee. Stand down is only available in certain circumstances. Learn more about standing down employees at Stand downs.

Further, employers generally don’t have the power to suspend employees without pay unless an enterprise or other registered agreement, award or employment contract allows them to.

Employees have various protections against being dismissed or treated adversely in their employment. Employers should make sure that they follow a fair process and have a valid reason for termination, or they may breach unfair dismissal or adverse action laws under the Fair Work Act.

Employers should also consider getting legal advice in these situations.

Find more information see:

• Managing performance and warnings
• Ending employment and redundancy.

If an employee refuses to be vaccinated, can an employer require evidence about why they’ve refused?

If an employer has provided a lawful and reasonable direction to be vaccinated and an employee refuses, the employer can ask the employee to provide evidence of the reason for their refusal.

Employers are only able to collect evidence of vaccination in limited circumstances. More information about workplace privacy is available at:

• Office of the Australian Information Commissioner – COVID-19: Vaccinations and my privacy rights as an employee 
• Office of the Australian Information Commissioner – Coronavirus (COVID-19) Vaccinations: Understanding your privacy obligations to your staff 
• Best practice guide – Workplace privacy.

An employer should also make sure that a requirement to provide evidence is lawful and reasonable. Whether a direction would be lawful and reasonable depends on all of the circumstances. If it is unclear whether a direction or the employee’s refusal is reasonable, employers should not take disciplinary action lightly and should seek their own legal advice.

Providing evidence of vaccination

• Can an employer require an employee to provide evidence that they have been vaccinated?
• What counts as proof of vaccination?

Can an employer require an employee to provide evidence that they have been vaccinated?

If an employer has provided a lawful and reasonable direction to be vaccinated for coronavirus and an employee complies, the employer can also ask the employee to provide evidence of their vaccination.

An employer should also make sure that a requirement to provide evidence is lawful and reasonable. As stated above, whether a direction would be lawful and reasonable depends on all of the circumstances. If it is unclear whether a direction or the employee’s refusal is reasonable, employers should not take disciplinary action lightly and should seek their own legal advice.

An employer may ask to view evidence of an employee’s vaccination status without raising privacy obligations provided they do not collect (i.e. make a record or keep a copy of) this information. An employer should not collect vaccination status information from an employee unless the employee consents and the collection is reasonably necessary for the employer’s functions and activities. However, consent to collection is not required if the collection is required or authorised by law (for example, a public health order applies or where it is necessary for the employer to meet their obligations under WHS laws). More information about workplace privacy is available at:

• Office of the Australian Information Commissioner – COVID-19: Vaccinations and my privacy rights as an employee 
• Office of the Australian Information Commissioner – Coronavirus (COVID-19) Vaccinations: Understanding your privacy obligations to your staff 
• Best practice guide – Workplace privacy.

Find out what is considered proof of vaccination at What counts as proof of vaccination?

What counts as proof of vaccination?

Australians can access proof of vaccination after they have been vaccinated through myGov, their vaccination provider (including a medical practitioner) or the Australian Immunisation Register. See Services Australia – How to get proof of your COVID-19 vaccinations for details.