2021 Update on COVID-19 vaccinations and the workplace
The Fair Work Ombudsman has recently updated their publication “COVID-19 vaccinations: workplace rights and obligations”, which is a useful guide for employers considering the impacts that the pandemic may have upon their current and future workforce. It reflects the Federal Government’s stated position is that while receiving a vaccination is a voluntary choice, they aim to have as many Australian workers vaccinated as soon as possible.
If we can initially focus on one theme, that of managing vaccinations in the workplace, there are several threshold issues to be addressed, including:
1. Does an employer need to consult with employees before implementing a program?
The need for, and method of consultation, is generally defined within an award or enterprise agreement covering the workplace. It is likely that consultation should also occur with any elected Health and Safety Representatives (HSRs).
2. Do employees have to be paid for any time taken to be vaccinated?
If the employer mandates vaccinations in the workplace, they should allow paid time off and cover any related travel expenses. If the vaccinations are voluntary, employees could access accrued time, annual leave, or unpaid leave.
3. Can an employee access Sick Leave if they have a reaction to a vaccination?
If an employee becomes unwell after vaccination and is unfit for work, they would be able to access sick leave for any subsequent absences. If the absence extends beyond several days, they would be required to submit a medical certificate.
With regard to the ability of an employer to mandate vaccinations, they would need to demonstrate the direct link between the vaccinations and ensuring the worker’s safety, client’s safety, or the safety of co-workers.
In a recent case, JK v Sapphire Coastal Community Aged Care Pty Ltd  FWC 1818, the Fair Work Commission upheld the decision of an employer to dismiss an employee in an aged care facility who refused to have a mandatory influenza injection. The Commission determined that the employee’s refusal to have the injection resulted in the employee being unable to undertake the inherent requirements of their role.
Under current arrangements endorsed by Federal Cabinet, aged care and quarantine workers are the only workers in Australia who are compelled to vaccinate; however, that is likely to change over the coming months.
Employers in the construction industry should note the views recently expressed by the Building Trades Group of unions in Queensland (CFMEU, ETU, PGEU and AMWU), who stated,
“medical decisions must be a matter for an individual acting on the advice of their doctor, and workers should not be punished for acting according to their own personal circumstances….We continue to work with employers and members to keep our industry safe, working and fully informed, but do not accept that coercive measures are part of any solution”.
For questions about COVID-19 and the workplace, implementing control measures, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to email@example.com
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.