No jab-no job – Is it legal?
We have become accustomed to displaying vaccination records on our mobile phones to gain access to certain leisure activities (for example, entering a restaurant).
What about the workplace? When can an employer require only those workers who have been fully vaccinated against Covid-19 to enter the workplace?
Authorised workers(e.g. in retail, the funeral industry or manufacturing) are required by enforceable directions issued by the Chief Health Officer to show evidence of vaccination to their employer to continue working at the workplace (1). Most workers will require full vaccination by 26 November 2021.
Specified workplaces such as residential aged care facilities, construction sites, healthcare, schools, and other education facilities require workers to be fully vaccinated. Employers and operators in these industries must take all reasonable steps to ensure that an unvaccinated worker does not enter, or remain upon, the premises. Different timelines apply. In residential aged care the full dose deadline was 15 November 2021; however, for healthcare facilities, the deadline is 15 December 2021 (2).
For all general workers (except anyone under 12), the situation is that if it is reasonably practical for a worker to work at home, the employer must not permit that person to work at the workplace, or anywhere outside the worker’s home, unless:
a) the worker is fully vaccinated, or
b) the worker is exempt on medical grounds (3).
An exempted worker must obtain a medical certificate or letter from an authorised medical practitioner that the worker is unable to receive a COVID-19 vaccine due to:
c) A medical contraindication to Covid-19 vaccines; or
d) An acute medical illness (including where the person has been diagnosed with Covid-19).
These requirements apply to employees, contractors, volunteers, and students on placement at the workplace.
Employers can require (or direct) their employees to return to the workplace, provided that the employers’ direction is lawful and reasonable. Workplace disputes and legal issues can arise when an employee the subject of a ‘return-to-work’ direction is not fully vaccinated or will not be fully vaccinated within the timelines prescribed by the health directions for the workplace.
Employers should consider whether an employee’s home is suitable for the type of work they will be doing. Workplace health and safety laws still apply when an employee is working from home. For some workplaces, working from home arrangements are not possible. When employees need to attend the workplace to work, it is important that employers also consider their workplace health and safety obligations during the pandemic. Employers must comply with privacy laws when requesting and gathering information about their employees’ vaccination status.
The Chief Health Officer’s mandatory health directions are updated frequently, so it is recommended that people consult the latest information and seek specific, tailored legal advice in relation to their individual circumstances and workplaces.
(1) COVID-19Mandatory Vaccination (Workers) Directions, as amended from time to time.
(2) COVID-19Mandatory Vaccination (Specified Facilities) Directions, as amended from time to time.
(3) COVID-19Mandatory Vaccination (General Workers) Directions, as amended from time to time.