This is a timely question.

As the law currently stands, there is no definitive answer.

Nor are there clear answers on what action, if any, can be taken against staff who refuse to vaccinate.

At the outset, it should be noted that employers in general are advised to assume that they are not able to force COVID vaccinations on their workers.

As per guidance contained on the Fair Work Ombudsman web site, employers can only require workers to be vaccinated where:

  • A specific law requires them to be vaccinated (such as a public health order etc.)
  • The requirement is permitted by an enterprise agreement or other registered agreement or an employment contract; or
  • It would be lawful and reasonable for an employer to give directions to be vaccinated.

Obviously, if either of the first two conditions are satisfied, employers will be able to mandate worker vaccinations.

Where this is not the case, the question comes down to whether such an order is ‘lawful and reasonable’.  Whether or not this is so will need to be considered on a case-by-case basis.

An important factor to consider is the nature of the workplace and the role performed by the worker.

In particularly, employers may potentially be able to issue lawful and reasonable vaccination directions where staff have extensive contact with the public and especially with vulnerable community members. In such a case, it is possible that vaccination may be considered an inherent requirement of the position.

This could be the case in settings such as childcare centres, border control, quarantine facilities or quarantine hotels.

In cases where workers refuse to comply with vaccination directions, employers need to consider the basis for the refusal taking any adverse actions. In particular, where the refusal is for medical grounds and is based on a contraindication from the employee’s medical practitioner, employers should be careful to ensure that any adverse action does not breach either anti-discrimination laws or general protections under the Fair Work Act.

In such cases, alterative arrangements should be considered. These could include working from home or working in separate areas.

Particular questions about forced vaccinations in respect of COVID-19 are yet to be decided by any court or tribunal.

However, some general principles can be observed from three recent Fair Work Commission decisions in regard to cases which concerned forced flu vaccinations. These are Ms Maria Corazon Glover v Ozcare [2021] FWC 231 and Ms Nicole Maree v Good-start Early Learning Centre Limited T/A Good Start Early Learning [2020] FWC 6083 and Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818.

One observation is that workers may not necessarily be able to claim for unfair dismissal where their employment has been terminated because of a refusal to receive a COVID jab. In particular, the Commission has held that in cases where there is an inherent requirement that a vaccination occur (e.g. where the worker works in aged care or childcare) it may not be feasible for those who refuse the jab to remain employed. This would be the case where the particular state in which the worker is employed has issued a public health order making the COVID vaccine compulsory for the particular settings which are concerned.

In cases where employers are permitted to mandate COVID vaccines, they are entitled to undertake legitimate disciplinary action against any workers who refuse. This includes warnings and potentially termination.

How about cases where vaccinated employees refuse to come to work or to work alongside unvaccinated colleagues? Again, there are no hard and fast rules. Ideally, such situations can be resolved through open communication.

What can be said, however, is that employers can take disciplinary action against any worker who refuses to comply with a reasonable and lawful direction to attend work.

Where employees are required to vaccinated, employers will need to compensate them for any travel costs to and from a vaccination centre (presuming that the vaccination is to be performed within work hours). In such cases, time taken off work to receive vaccinations should not be deducted from the employee’s pay.

This is a constantly changing area of law. Advice be sought for specific circumstances relating to your workplace.

The bottom line is that there will rarely be a one-size fits all approach.

Accordingly, all considerations outlined in this article will need to be reflected upon.