In response to calls for clarity around the impact of the coming COVID-19 vaccination program on workplaces, the Fair Work Ombudsman (FWO) has today updated its guidance to businesses on understanding and responding to the requirements and specifically explores if business can and if they should be requiring their staff to be vaccinated.

Pointing out that the guidance is general and business should seek legal advice on their own specific situation, the updated information from FWO dives straight into the central question of requiring staff to get the jab; “the overwhelming majority of employers should assume that they wont be able to require their employees to be vaccinated”.

Despite the desire of the Government to have as much of the population vaccinated as possible there will be persons who cannot have the vaccine due to medical reasons or choose not to due to ethical reasons, and to deny these people access to work would result in the business breaching the Fair Work Act and open the business to penalties.

There are some exceptions that would apply in extraordinary circumstances in some workplaces where the vaccine status of the employee is considered an intrinsic requirement of the role. These exceptions are rare and typically involve health and childcare employment situations. In all cases a direction from a business to an employee requiring them to be vaccinated is something that will either come from a prior agreement (like and Enterprise Bargaining Agreement) a law or could be subject to legal challenge as to whether it was a lawful instruction.

In fuel wholesale and retail these extraordinary exceptions would not apply as a standard. While it would be appropriate for fuel businesses to encourage staff to be vaccinated, it would be unlikely that any forcing of vaccination as a condition of employment would pass the test of a lawful instruction, and as such would likely result in an adverse action claim or a discrimination claim from the staff.

It is possible that at some point in the future a State Public Heath Order could be issued to require the vaccination of employees, at which point the business would have to comply, but to date no such orders have been issued.

From a practical standpoint this raises some questions that the business is likley to encounter as the vaccine rollout continues;

  • Does the business have to pay for the staff to attend to get their vaccine?
    • In the case of most businesses where the business cannot compel the employee to get the vaccine, No the business does not have to pay staff to get vaccinated
  • Can the business ask staff if they have been vaccinated and for proof of vaccination?
    • In the case of most businesses, where the business con not compel the employee to get the vaccine, No the business cannot ask about the vaccine status of the employee, or ask for proof. It may be tempting to ask staff to volunteer this information as part of curiosity or in an effort to be able to market the business as “all staff COVID-19 vaccinated” but such a question, and any subsequent employment decisions that are made after it, would be in breach of the Act and could result in adverse action or discrimination claims.
  • Can one of my staff refuse to work with another staff member who has not been vaccinated?
    • No. The vaccine status of staff is not something that the business has a right to inquire into (in most businesses where the business cannot compel the employee to get the vaccine) and as such any refusal by an employee would be grounds for a discrimination claim. If faced with such a situation businesses should, as with any safety concern, communicate with the refusing employee about the risks and exemptions and what the business can and cannot do, and if the employee continues to refuse the businesses lawful instruction to attend work with the particular employee, then performance management of the refusing employee is likely

ACAPMA reminds Members that they can seek specific advice on vaccines and issues related to them by contacting employment@acapma.com.au.

For more information on the Fair Work Ombudsman guidance see; https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/health-and-safety-in-the-workplace-during-coronavirus/covid-19-vaccinations-and-the-workplace

ACAPMA