Can you make your employees get the COVID vaccine?

A lot of employers have asked us if they can make their employees get the COVID vaccine. It’s not surprising given Sydney, Canberra and Melbourne are in prolonged lockdowns. And, when we do open up again, many employers fear the covid delta virus spreading among their teams, customers, clients or patrons. So, can you force your employees to get jabbed?

The short answer is maybe…

Unfortunately, there is no one answer that applies to all employers and employees. You may ask all employees to get the COVID vaccine and provide proof of vaccination in some cases, but you won’t in other cases. Which rules apply to you depend on what sector you’re working in, as well as where you’re located.

What the Commonwealth law says about forcing employees to get the COVID vaccine

The starting point for working out whether you can ask employees to get jabbed is the Commonwealth law. Here, the Government says there are three main circumstances where you can require it where:

1. There’s a specific law requiring an employee to be vaccinated against COVID-19.
2. It’s permitted under an enterprise agreement, award or employment contract.
3. It’s lawful and reasonable to direct someone to be jabbed.

Specific laws requiring employees to get the COVID vaccine

The specific laws that require employees to be vaccinated tend to be different based on State and Territory, here’s how they break down at the time of writing.

NSW

• All quarantine, transportation and airport workers
• Construction workers living in an ‘area of concern’
• Authorised workers living in an ‘area of concern’
• Some childcare, early education workers and disability service workers who live in an ‘area of concern’
• Healthcare workers (from 30 September)

ACT

• Certain residential aged care facility workers

VIC

• Residential aged care facility workers

QLD

• Health service employees
• Queensland Ambulance Service employees
• Hospital and health service contractors
• Residential aged care facility workers
• Workers in quarantine facilities
• Essential workers with permission to cross into Queensland from New South Wales

WA

• Quarantine centre workers
• Residential aged care facility workers
• Health care facility workers

SA

• Quarantine system workers, including in airports, medi-hotels, health-care settings and transportation
• Staff, contractors and volunteers in residential aged care facilities
• Some ‘essential travellers’ arriving in South Australia

TAS

• Workers entering a residential aged care facility
• Workers entering a quarantine site
• Workers providing quarantine transport
• Workers entering a medical or health facility
• Workers providing health or medical services or treatments

Requiring vaccination permitted under a contract or agreement

Some employment contracts and agreements allow an employer to require a worker to be vaccinated. You can usually enforce these provisions, but you should also make sure you don’t fall foul of anti-discrimination laws.

If you’re drawing up a new employment contract, you could consider including a term that requires the employee to be vaccinated as a condition of employment. However, you’ll generally have to weigh this up against your duty to avoid discrimination.

Where it’s lawful and reasonable to ask someone to be jabbed

This is the least ‘cut and dry’ of the reasons for compelling an employee to be vaccinated. Whether something is lawful and reasonable needs to be assessed on a case-by-case basis. Just because it may be lawful to require one employee to be vaccinated doesn’t necessarily mean it will be lawful to require another one.

Whether something is lawful will depend on the employee’s contract, award or agreement, as well as any laws that apply. You also need to consider the broader context, such as the nature of the workplace and the employee’s role. Also consider the extent of community transmission, the employee’s individual circumstances, and your own WHS obligations.

The Government recommends that, when assessing whether it’s lawful and reasonable, you classify your employees into four categories:

• Tier 1: Interact with high-risk people as part of their duties (i.e. hotel quarantine or border control).
• Tier 2: Have close contact with people vulnerable to COVID-19, such as medical patients or the elderly.
• Tier 3: Interact – or are likely to interact – with customers, employees or the public as part of their duties.
• Tier 4: Have minimal face-to-face contact with others, such as those working from home.

The government states that it’s likely to be lawful or reasonable to compel a tier 1 or 2 employee to be vaccinated. On the other hand, it’s unlikely to be lawful or reasonable to ask a tier 4 employee to get the jab.

For tier 3 employees, whether or not you can lawfully and reasonably ask them to be vaccinated will depend on the extent of any community transmission and whether your business needs to remain open.

The consequences of getting it wrong

Requiring an employee to get vaccinated where you don’t meet any of the requirements could leave you open to a claim of unlawful discrimination, unless you can prove that the inherent requirements of the job made it reasonable. Corporations can be fined up to $66,600 for each proven instance of unlawful discrimination, so it’s important you get it right.

If the employee can’t attend work, you may also find that it leads to a ‘constructive dismissal’, in which case you could also face an unlawful dismissal claim. This could lead to the employee being reinstated and compensated with up to 26 weeks’ pay.

Before compelling staff to be vaccinated, it’s important you get the right advice.

Talk to a HR company

If you’d like to know more about your right and obligations when it comes to asking staff to be vaccinated, get in touch.