Having officially commenced rollout in February 2021, 7.4 million vaccinations have been administered to Australians (as of June 29, 2021). The government originally aimed to have the entire country vaccinated by October. However, we’re tracking behind that goal with a 7 day rolling average of 112 thousand doses. That means it will take 11 more months to administer 45 million doses.

When you receive your vaccine is dependent on factors including age, health and occupation. You can use this interactive tool to determine which phase of the vaccine rollout you fall into.

In the meantime, businesses are navigating unchartered territory with employees and their health and safety. It’s important to carefully follow direction from the Government and, if you’re unsure, seek legal advice.

The lay of the land

You may not be able to force an employee to get vaccinated as their medical condition could mean their doctor advises against it. For now, Safe Work Australia maintains compulsory vaccinations across all occupations and professions are not practical. As well, the Federal Government’s policy is for voluntary coronavirus vaccinations – they won’t be the body forcing employers to vaccinate their staff.

Under the model workplace health and safety laws, which cover all industry sectors, employers must eliminate, or if this is not possible, minimise the risk of workplace exposure to the virus. The vaccine, though, is just one of the control measures available. Asking staff to work from home could be another option. Others include wearing masks and other PPE if staff have valid reasons for being unvaccinated.

Lawful and reasonable directions

Lawyers advise employers not to assume they can compel employees to take the vaccine. That’s even if they operate in particular high-risk workplaces covered by public orders compelling workers to be vaccinated. For details on which workplaces are on that list, refer to your state or territory health agencies.

For instance, Queensland health employees working with diagnosed cases of COVID-19 and Western Australian quarantine centre workers must be vaccinated. In those workplaces, employers have given their workers a lawful and reasonable direction to be vaccinated. If you’re not sure it’s lawful or reasonable and those public health orders don’t apply, seek legal advice, says Fair Work Australia.

Asking staff for evidence of medical advice if they say they can’t be vaccinated or have already been vaccinated can raise privacy issues. Pregnancy or a person experiencing a disability are just two of the valid reasons for not getting vaccinated. The Privacy Act covers Australian government agencies and private sector organisations, including all private-health-service providers. However, small businesses with an annual turnover of $3 million or less are exempt under the Privacy Act (there are some exemptions to the turnover limit, explained here).

Employers must ensure staff understand why you’re collecting vaccination status information and how you’ll use it. Asking for it ‘just in case’ won’t stand up in court. You should be genuine in allowing them to give or withhold consent and not use intimidation or deception. Check out Fair Work Australia’s guide to workplace privacy and this guide from the Office of the Australian Information Commission.

Earlier this year, the Fair Work Commission upheld the right of Goodstart Early Learning to dismiss a staff member who refused to get a flu jab, which was a condition of her employment. The judgement expressly does not give a blanket authority for employers to mandate vaccinations generally, though.

If a public health order requires your staff to be vaccinated, try offering them an incentive. They may appreciate having the jab during work hours, and some paid time off just in case there are side effects.

Keeping your workplace safe from those not vaccinated

Employers should not try to enforce a blanket rule so that only vaccinated people can enter their premises. Such a rule risks discriminating against those who are pregnant or have a disability and may be medically prevented from getting the jab. That’s indirect discrimination, according to the Australian Human Rights Commission. However, a commission may accept an employer’s defence that the requirement to be vaccinated can be ‘reasonable’ depending on the case. Employers here have the burden of proving ‘reasonableness’.

Meanwhile, some sectors, such as aged care, are being proactive. In June, it asked the Federal Government to mandate compulsory COVID vaccinations for workers in that sector. Qantas has gone further. Late last year, it announced only those who’ve been vaccinated can board its international flights. That’s a reasonable move as it shows Qantas, as an employer, is protecting the health and wellbeing of its staff – crew members – and passengers.

Employers know circumstances are fluid as Australia continues to navigate through coronavirus waves. Be sure to check your state or territory’s health agencies for updates.

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