Some employers try to mandate vaccines in the workplace ... but a law doesn’t exist

AS THE COVID-19 vaccination continues its rollout across Australia, there is increased talk on whether or not it should be made compulsory in the workplace.

Last week SPC became the first Australian company to require all onsite staff and visitors be vaccinated by November, a move unions have described as ‘unrealistic’. Other companies are expected to follow suit.

According to SME workplace advisory firm Employsure, SPC aside, all vaccine mandates for workers such as those in the aged care and health care sectors have previously only been made by governments under public health orders. So while employers like SPC may seek to mandate vaccinations for the health of their staff, there is currently no law that will specifically allow them to enforce it.  

“Employers who want their staff vaccinated may see themselves hit with a Fair Work claim if that employee is sacked as a result of refusing the jab,” Employsure health and safety manager,  Larry Drewsen said.

“As it stands, employers cannot force an employee to get the jab. While we may see circumstances change as vaccination rates continue to climb, employers should tread with caution and maintain open communication with their employees over their workplace vaccination rights, responsibilities and options.

“While employers cannot force an employee to get the jab, they must however, continue to do everything reasonably practicable to reduce the risk to health and safety in the workplace.”

Mr Drewsen said while employers are unable to mandate it, they can ask the question to their employees on whether or not they want 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.

Workers do not however, have to tell their employer if they have been vaccinated, or even give a reason behind it," Mr Drewsen said. "To keep on the safe side, employers should assume a worker is unvaccinated if they withhold this information, and inform that worker of their assumption."

"While some worksites may be at higher risk than others, it shouldn’t stop employers in lower risk settings from keeping track of which employees have been vaccinated. Employee management software like BrightHR’s Vacctrak feature allows employers to monitor who is fully, partially, or not vaccinated against COVID-19 in the workplace.

“Employers have an obligation to take reasonably practicable steps to ensure a safe workplace, and health advice indicates vaccinations are a critical component if we are to successfully come out of this pandemic. As they cannot legally enforce it, employers should consult with employees who are unable, or don’t want the COVID-19 vaccination, and discuss alternative measures that can help them do their job safely,” Mr Drewsen said.

“The Federal Government has stated mandatory vaccinations will not happen in Australia. While vaccinations form part of a business’s methods of controlling the risk of infection, employers must therefore have other plans in place if workers refuse.

“For employers who follow SPC’s lead and make vaccines mandatory to continue on-site work, by doing so it could lead to legal challenges in the future. Employers must be prepared for that and weigh up alternatives to mandatory vaccinations if it comes to it.”




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