Workplace Relations News & Updates for NDS Members & Associates *
* To contact WorkPlacePLUS, NDS members and associates will need to complete the NDS professional advisory services online form >
COVID-19 VACCINATIONS – Questions & Answers
Updated 18 August 2021
Australia’s COVID-19 vaccination program is underway. While free for those receiving the vaccine, mandatory COVID-19 vaccination is becoming a reality for a growing number of Australian workplaces, particularly high risk workplace settings. This creates a new suite of HR considerations for employers, including workplace policies, recruitment and onboarding, employment agreements, recording-keeping and privacy.
1. What are the key HR/IR considerations for my organisation?
How do we maintain a COVIDSafe workplace?
Is the organisation mandating the COVID-19 vaccine for employees, contractors and volunteers, and is this reasonable and lawful?
Do we need to incorporate vaccinations into either an organisational policy and/or employment contracts/ EBA’s?
Do we have a communications strategy around vaccination requirements?
How do we manage employee records for those who have been vaccinated?
How do we manage employees who are not vaccinated on health or religious grounds?
How do we manage employees who refuse to be vaccinated?
2. Can I mandate the COVID-19 vaccination for my employees?
From 17 September 2021, COVID-19 vaccination will be mandatory for residential aged care workers. Read more >
“Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable will be fact dependent and needs to be assessed on a case-by-case basis.” - FWO
For a vaccination direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law or public health order that applies.
State and territory governments have made and may continue to make public health orders requiring workers to be vaccinated against COVID-19 in their state or territory. This already applies to certain types of high-risk workers in New South Wales, Queensland, South Australia and Western Australia. Employers and workers must comply with any public health orders that apply to them.
The Fair Work Ombudsman (FWO) will continue to monitor for any new public health orders and update their information accordingly.
For current information and guidance from the FWO on common questions about coronavirus vaccinations and the workplace, click here >
Employers in all states and jurisdictions need to consider is whether mandatory COVID-19 vaccination is a lawful and reasonable measure to eliminate or minimise health issues and transmission to clients and other employees. The coronavirus pandemic alone does not automatically make it lawful and reasonable for an employer to make COVID-19 vaccinations mandatory for employees.
A COVID-19 vaccine mandate may be lawful and reasonable in your organisation if, for example:
your employees and/or clients are particularly vulnerable to the health impacts of coronavirus infection;
your employees interact with other people in the course of their work that could contribute to a ‘super-spreading’ event if an employee contracts COVID-19;
public health experts such as the Australian Health Protection Principal Committee (AHPPC) were to recommend COVID-19 vaccinations for all workers in the Health & Disability Sector.
Where employees have a health or medical reason for not wanting a vaccination, the employer may have an obligation under the Disability Discrimination Act to make reasonable adjustments.
The decision to mandate COVID-19 vaccine for all or selective areas of your workforce is a complex matter that may pose a number of risks under the Fair Work Act 2009 and anti-discrimination legislation. To determine whether it is lawful and reasonable to mandate the COVID-19 vaccine in your specific organisation, you will need to assess the risks.
The FWO advises that there are a range of relevant factors to consider:
the nature of each workplace (e.g., taking into consideration public facing roles, the provision of essential services, options for social distancing, etc.)
the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant
the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant
work health and safety obligations
each employee’s circumstances, including their duties and the risks associated with their work
whether employees have a legitimate reason for not being vaccinated (e.g., a medical reason)
On 13 August 2021, the FWO updated its website with new guidance for employers on mandating COVID-19 workforce vaccinations. Four broad tier levels have been developed to help guide employers on assessing the risk level of their working environments, as a gauge of whether it may be “more reasonable” or “less reasonable” to direct employees to be vaccinated against COVID-19.
4 broad work tiers:
Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (e.g., hotel quarantine or border control).
Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (e.g., health care or aged care).
Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (e.g., workplaces providing essential goods and services).
Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (e.g., working from home).
It is important to note that a workplace may have a mix of employees performing work in different tiers. This needs to be considered during your self-assessment.
Health care, aged care and disability care all fall under the category of Tier 2 work. This is because of the increased risk of employees being infected with COVID-19, or giving COVID-19 to a person who is particularly vulnerable to the health impacts of coronavirus.
It is more likely to be reasonable for disability care providers to mandate COVID-19 vaccinations for their client-facing or on-site workers.
Each employer should carefully consider the relevant factors and implications and seek tailored HR/legal advice if they are considering making COVID-19 vaccinations mandatory in their workplace.
3. What if an employee refuses to get vaccinated?
Where vaccination is still voluntary, employers should take all reasonable steps to encourage unvaccinated employees to receive the recommended COVID-19 vaccines. It is also important to give your staff ample opportunity to personally discuss their individual concerns with you. It is best practice to use respectful communication in addressing any employee concerns.
You should take unvaccinated employees into consideration when doing your risk assessment and revising your policies.
The details and options for managing refusals may change if your organisation takes steps to lawfully mandate COVID-19 vaccination in your workplace. If this is the case, employers should seek tailored HR/IR and/or legal advice.
For those employees who refuse the vaccine for personal reasons, the organisation requires a well structured and informative communication strategy that supports the position taken by the organisation. The process should include two-way communications with employees, where they have the opportunity to ask questions and voice concerns.
4. What are my COVIDSafe obligations under Work Health & Safety (WHS) laws?
Under WHS laws, you have a duty to mitigate the risk of exposure to COVID-19 in the workplace so far as is reasonably practicable. COVID-19 vaccination is one factor among a range of practical COVID-19 control measures currently available.
5. Do I need a vaccination policy?
There is no WHS requirement that you must implement a policy around the COVID-19 vaccine, however all employers should review and update their organisational WHS policies regarding infection control, including COVID-19 requirements.
For disability organisations intending to mandate or even strongly encourage COVID-19 vaccinations, it is advisable to develop a vaccination policy.
6. Do I need to keep vaccination records?
If you are requiring employees to vaccinate then it is advisable to keep accurate and up to date employee vaccination records. As most disability workers are already required to receive the flu vaccine, employers will be familiar with the importance of keeping accurate and up-to-date staff vaccination records in accordance with their infection prevention and control programs.
Under the Australian Privacy Act 1988 (Cth) (the Privacy Act) businesses have less stringent privacy obligations to their employees because of the “employee records” exemption. Specifically, private sector employers’ handling of employee records in relation to current and former employment relationships is exempt from the Australian Privacy Principles in certain circumstances.
Not all personal information that an employer holds about an employee will be considered an employee record if it is not sufficiently related to their employment. Employers will need to bear this in mind if they want to keep a database of who has had the vaccine.
Another issue to consider is that contractors, subcontractors and volunteers are not covered by the employee records exemption but will instead be governed by the restrictions in the relevant contract.
7. What information do I need to provide to my employees?
When consulting with your workforce, it is important to:
✅ Have a good communication strategy
✅ Provide reliable, facts-based Information on:
relevant vaccine-preventable diseases and why vaccination is important in your organisation,
the types of vaccines available, including information on safety and effectiveness,
when/where/how they can receive the COVID-19 vaccine,
where they can find additional information and support.
✅ Share your organisation’s stance on COVID-19 vaccination, including for example:
a review of any new or existing policies and processes,
a review of relevant employer and employee rights and obligations,
consider offering vaccination during work hours.
✅ Give your staff ample opportunity to respond, ask questions and discuss any concerns.
8. Where can I find information about the COVID-19 vaccines?
The best place to start is here: https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines
9. What if a client wants assurance that their carer has been vaccinated?
Employers should be cautious about making any public statements such as “all our staff are vaccinated”. Not only might this be misleading if untrue, but it may expose you to other risks. Privacy laws would prevent you from disclosing sensitive medical information such as vaccination status without the employee’s consent.
Employers should remind all employees and clients of the control measures you have implemented to ensure a safe workplace, including a range of COVIDSafe practices.
10. Where can I get further assistance?
To discuss the specific needs of your organisation, please contact WorkPlacePLUS via NDS’s online professional advisory form.