Can your employer force you to be vaccinated?
As the rollout of COVID-19 vaccinations continues, many are now beginning to question whether or not their employer can force them to get the jab.
Master Electricians Australia said it has been highlighted that the ‘overwhelming majority’ of employers should assume they have no power to force employees to vaccinate against COVID-19.
However, the requirement to be vaccinated may well come to form an inherent/core requirement of the worker’s role. Without the vaccination the worker may not have the capacity to be deployed to particular sites.
The flow-on consideration is then, what capacity does the employer have to deploy this worker given the number or types of sites that they have been excluded from?
Can the worker still meet the ‘inherent requirements of the role’? If a worker suddenly lost their electrical licence and couldn’t get it back, for example, an electrician would no longer be able to perform their role.
The Fair Work Ombudsman and Safe Work Australia are preparing guidance material that aims to be comprehensive; however, every workplace will be different. Safe Work Australia is proposing to provide industry-specific information guidance.
In the absence of a state or federal mandatory direction for immunisation, an individual employer’s approach should be dictated by health advice.
The requirement for workers to be vaccinated against certain transmittable diseases is not new. It is already the case that many employees are already subject to requirements to be inoculated.
Where there is health advice that there is an operational requirement for inoculations, only those workers who are vaccinated would be able to access those sites/locations.
These sorts of requirements operate for nurses — for example, they must get the flu vaccine every year. The requirements also apply to people who work in meatworks, as there are viruses that humans can catch from animals.
The Office of the Australian Information Commissioner has released a new COVID-19 Vaccinations privacy guidance for employers to understand their obligations when collecting, using, storing and disclosing employee health information related to the vaccine.
It complements the COVID-19 Guidance for employers which provides more general information about the privacy obligations of Australian Government agencies and organisations covered by the Privacy Act 1988.
Master Electricians Australia recommends that in any situation where dismissal is being considered that this should only occur after a lengthy and measured process of assessing:
- the ability of the client to mandate the vaccination for their site,
- the reasons for the worker’s decision not to take up the vaccination,
- the volume of work that this work represents for the business,
- the impact on their capacity to be deployed,
- what deployment options exist, and does the employer have an obligation to make reasonable adjustments for this worker because of a medical condition or other discriminatory attribute,
- most critically the usual process of putting those matters to the worker for their response and consideration.
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