Can Businesses Require Staff Get Vaccinated?

With the COVID-19 vaccine due to be rolled out to the general public in late July, businesses may be wondering whether they can require their staff to get vaccinated.

Can I ask my employees if they are vaccinated?

There is certain work at the border that can legally only be done by a vaccinated worker, under the COVID-19 Public Health Response (Vaccinations) Order 2021. Businesses employing certain border workers are under an obligation to ensure their workers are vaccinated within certain timeframes, and that unvaccinated workers do not carry out certain tasks.

For all other workers, the starting point is that there is no general legal requirement to be vaccinated. An employee has the right to privacy, and whether or not they have been vaccinated is their personal information. You must have reasonable grounds for requesting that information (as discussed below).

When can I require an employee to be vaccinated?

A business has obligations under the Health and Safety at Work Act to minimize health and safety risks in the workplace. If an employee:

1. has a high risk of contracting or transmitting COVID-19 to others in their particular work; and
2. that risk cannot be minimized adequately by other measures such as physical distancing, sanitizing and Personal Protective Equipment

then the business may require the work done by that employee to be done only be a vaccinated worker. It is likely that this will only apply to a small number of workplaces such as aged care residential facilities. Each business will need to conduct its own health and safety assessment.

If the work is high risk and can only be done by a vaccinated worker, you can ask the employee to provide evidence that they are vaccinated within a reasonable timeframe, ensuring you have explained your reasons for the request.

What happens if my employee needs to be vaccinated for their work but is unwilling or unable?

If you have determined that the role needs to be done by a vaccinated worker, and the worker doing that role is unwilling or unable to be vaccinated, this may mean that you need to vary the terms of their employment. Any changes to employment must be agreed to by both parties following a good faith consultation. A fair and reasonable employer will consider:

• Whether the employee can be put on annual leave or special paid leave if they are intending to be vaccinated or the high-risk duties are only for a fixed time period
• Whether it is possible to give the employee other lower-risk duties for which vaccination is not required, for example at any other worksite or in another department
• Whether the role has been changed to such an extent that none of the duties can be done by an unvaccinated employee

If you are in this position and considering restructuring or redundancy of an unvaccinated employee, we recommend you seek legal advice to ensure the correct process is followed.

Feel free to contact our Employment Law team with any queries you may have.