With the onset of COVID-19 vaccines rolling out in Australia, there are several concerns amongst employers and employees about their rights and obligations in their workplace. Under the Work Health and Safety (WHS) laws, employers have a duty to practice reasonable measures within the workplace to eliminate or minimise the risk of exposure to COVID-19.

Currently there are no public health orders or any specific laws that enable employers to “mandate or require” their employees to get vaccinated against coronavirus. The Australian Government’s policy towards receiving the vaccination is voluntary, however, it does aim to get the maximum number of people vaccinated. 

Nevertheless, there may be few circumstances where an employer could request and require their employees to get vaccinated. Whilst the circumstances would vary case-by-case, some of the considerations would be individual circumstances and particular workplaces. 

This article covers some of the common queries received about coronavirus vaccinations and the workplace:

Is it lawful for Employers to require vaccinations?:

There is no law around mandatory vaccinations but since it’s a concern of health and safety, employers can ask their employees to be vaccinated. Especially if the direction is given on the basis of the following scenarios:

  • Legislation has been passed or there is a public health order that requires vaccinations against coronavirus -

Although at present there is no legislation that mandates vaccinations in the workplace, if the state and territory governments pass public health orders to require the vaccination of workers in their state or territory then employers and employees will be required to comply.

  • Employment agreements with respect to the vaccinations -

Employers may already have agreements in place with employees or may enter into an agreement relating to vaccinations or coronavirus vaccinations. If the employee agrees and signs the agreement on such terms then they will be required to comply. Employers and employees are encouraged to seek legal advice to ensure such arrangements are not contrary to anti-discrimination laws. Such terms may be considered unenforceable.

  • If the employer gives lawful and reasonable directions - 

A lawful and reasonable direction is generally assessed depending upon the nature of the matter and would vary from case to case.

A direction may be considered to be a reasonable measure if implemented to eliminate or minimise risks under work health and safety laws. For example, employees who may have an elevated risk of being infected with coronavirus or employees who have close contact with people who are most vulnerable to the health impacts of coronavirus infection may be asked to get vaccinated. Healthcare workers or quarantine facility employees are some relevant examples where vaccination would be a reasonable direction.

Can an employee refuse to be vaccinated?

If an employee refuses to get vaccinated contrary to law, public health orders or an agreement then it can lead to further issues. Employers should initiate a discussion and try to understand the concerns of their employees, particularly if those concerns relate to the health and safety measures within the workplace.

If an employee refuses to get vaccinated it is important to ask the employee their reasons for refusing the vaccination as they may have a legitimate reason for not being vaccinated (like a medical condition). In the absence of any reasonable excuse for the refusal, an employer may take disciplinary action or even terminate an employee on the account of breaching any applicable law or agreement.

Before taking any action, employers should consider the terms under any applicable:

  • agreement 
  • award
  • contract
  • workplace policy
  • law and public health order

Employers should always seek legal advice to ensure compliance with any applicable law.  Furthermore, they must ensure that they follow a fair process and have a valid reason if termination is considered as in some instances it may become grounds for unfair dismissal or adverse action laws under the Fair Work Act.

Aspire Lawyers can help in addressing your concerns around the Fair Work Act and any rules with respect to COVID-19 vaccinations in the workplace. To contact our Commercial Law team call 03 9743 1333 or email .