Can you make vaccinations compulsory? 4 things employers need to know


It’s never been a more confusing time to run a business right now. Employsure, a workplace relations advisor to more than 27,000 small and medium enterprises across Australia, has seen a sharp spike in calls in the past two months with questions around vaccination and health and safety.

Health and safety-related calls to the employer advice line jumped 39 per cent in July and August, compared to May and June, due to the uncertainty caused by lockdowns, working from home safety obligations and COVID-19 restrictions. Leave-related calls have spiked 51 per cent in that same time, sparking concerns employees are building huge annual leave ‘war chests’ at the expense of small business owners.

“These figures aren’t just a result of the ongoing lockdown in New South Wales, but are also a consequence of snap lockdowns that have occurred in almost every other Australian state and territory since the end of June,” Employsure health and safety manager Larry Drewsen told Kochie’s Business Builders.

However, the most pressing questions employers have are around COVID-19 vaccinations and staff. Employsure’s advice line saw a 430 per cent surge on the topic in August alone.

Here are the major questions they’re fielding and what employers need to know right now.

1. Can we make the vaccination mandatory in our workplace?

“The number one question employers are asking is if the vaccine can be made mandatory or not, and whether or not it can result in any legal trouble down the line,” Larry said.

Some state governments have mandated jabs for healthcare workers and teachers, as well as the NSW Police Force, and federally, vaccines for aged care workers will become compulsory this month. More recently, Victorian Health Minister Martin Foley announced mandatory vaccinations for freight and healthcare workers who need to enter Victoria after being in high-risk COVID areas.

When it comes to big business, the Australian companies who have announced their plans for mandatory vaccinations for staff so far include SPC, Telstra, Qantas Group, Virgin and Spotlight Group, who have told employees to get vaccinated or miss out on their Christmas bonus.

While these employers and any others that decide to follow suit may seek to mandate vaccinations for the health of their staff, there is “currently no explicit law in legislation for employers to direct their employees to comply outside of specific industries and occupations”, Larry explained.

“The Fair Work Ombudsman has, under new proposed guidelines, given the go-ahead to employers in certain ‘high-risk’ industries to mandate COVID-19 vaccinations if the direction is considered lawful and reasonable,” Larry added.

So, what are the determining factors of being considered ‘high-risk’? According to Larry, factors include “the location of the business in Australia, vaccine availability, the prevalence of community transmission of COVID-19, employees’ individual circumstances, the risk of infection in the workplace, as well as what is set out in the relevant employment contract, award or agreement”.

“Generally, it is unlikely that a direction to be vaccinated would be reasonable if an employee worked 100 per cent remotely,” Larry said. “Those who want their staff vaccinated may see themselves hit with an unfair dismissal claim if an employee were sacked as a result of refusing the jab.”

If an employer is unsure if their industry or business meets the criteria, Larry strongly recommends seeking legal advice as a general rule.

2. If you cannot mandate, can you still encourage?

The Federal Government has stated that vaccination is free and voluntary, but strongly encourages it. Employers can play a similar role.

“Employers do have a duty of care under Work Health Safety laws and must do everything reasonably practicable to reduce the risk to health and safety in the workplace,” said Larry. “Vaccination can be considered as one way to achieve this but all reasonable measures to control the risk of transmission and infection should be considered.”

Larry advised that employers consult with workers regarding risk management strategies, “Which may be an excellent opportunity to discuss a vaccination program and discuss any concerns.”

So, while employers might be unable to mandate that employees receive a COVID-19 vaccine, they can still encourage their employees to receive the jab.

“Employers can suggest staff get the vaccine, provide them with relevant government health advice, and allow them to take time off during the workday if only weekday appointments are available.”

When it comes to enquiring after an employee’s vaccination status Larry advised, “Unless it is lawful and reasonable in the circumstances for employers to require employees to disclose their vaccination status or provide a reason for their refusal to be vaccinated as part of a mandatory vaccination policy, workers do not have to tell their employer if they have been vaccinated, or even give a reason behind it.”

“To keep on the safe side, employers should discuss with a worker their concerns about disclosing their vaccination status or reason for refusal,”

“If the worker was still not forthcoming, employers may need to assume the worker is unvaccinated, inform the worker of that assumption, and arrange suitable duties for the worker to accommodate the health and safety requirements of the business.” Larry advised.

If an employer is in a position where they cannot reasonably direct their employees to receive the COVID-19 vaccine, Larry recommends they consult with employees who don’t want to, or who are unable to have the COVID-19 vaccine and discuss alternative measures that can help them do their job safely.

3. Do I need an infection control policy?

“The most important thing an employer can do is incorporate an effective infection control policy based on government health advice which addresses vaccinations and subsequent immunisation programs,” Larry said.

While vaccinations form part of a business’ methods of controlling the risk of infection, if they are unable to mandate vaccinations for staff, Larry urged businesses to have other plans in place.

“Staff should be reminded of existing infection control measures already in place, such as physical distancing, routine environmental cleaning, and the use of hand-sanitiser and personal protective equipment,” he said.

Find out more about building an infection control and immunisation policy for your business here.

4. What if there’s vaccine misinformation or conflict?

What if your employees refuse to work with an unvaccinated colleague? It’s a common concern of employers right now, but the answers are not so clear-cut.

“If there are reasonable processes and procedures put in place by the employer to allow the unvaccinated employee to not expose others to risk then refusing to work with them may not be acceptable.” said Larry.

“However, if there are no specific control measures that could be put in place, such as masks and other protective equipment, social distancing, regular testing and special hygiene processes, then the vaccinated may have basis to refuse working with an unvaccinated colleague.”

If an employer becomes aware of vaccine misinformation in the workplace, or if the topic of vaccinations is seen to be causing conflict, Larry recommends the employer hold a meeting with all relevant employees.

“This gives the employer the opportunity to investigate the concerns and opinions of employees, and then base any further action off the back of that meeting,” he said.

“The action that should be taken regarding misinformation is dependent on what has been said in the workplace and the subsequent meeting, the severity of what has been said, and the potential impact it could have on other employees.”

If an employee is found to have purposely spread misinformation through the workplace despite a policy or direction not to do so, Larry advised the business may consider disciplinary action for failure to comply with a reasonable management direction.

“Depending on the circumstances and provided a fair process is followed, this may give an employer grounds for dismissal either with or without notice or payment in lieu of notice.”

Want more information? Employsure has a free Vaccination Kit with templates and resources for employers. 

For other employment relations questions, call Employsure’s free 24/7 Employer Helpline on 1300 487 906 or ask a question at employsure.com.au.


This article is brought to you by Kochie’s Business Builders in partnership with Employsure.

Feature image: AdobeStock





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Can you make vaccinations compulsory? 4 things employers need to know
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