Although Australia seems to have weathered the worst of the negative health effects of the COVID-19 pandemic, the subject of vaccinations looks set to make continued headlines for a while yet as the employment sector approaches challenging new legal ground.

Our previous article titled Can employers mandate the COVID-19 vaccine? provides some crucial key takeaways, including:

• Employers are able to issue a direction to employees to be vaccinated in certain circumstances; and,
• A direction must be reasonable (as per a case by case assessment of risk and other relevant factors) and lawful.

Once an employer has issued a direction to an employee to receive the COVID-19 vaccine (direction), an employee may legitimately refuse the direction in certain circumstances. Employers should carefully consider how to approach employee refusals.  

When can an employee lawfully object to a direction to get the vaccine?

Once a direction has been made, an employee may refuse to comply where that direction is unreasonable. A direction may be unreasonable if an employer can reasonably make alternative arrangements that will result in the employee not having to have the vaccine. For example, an employer could:  

• agree to vary work duties, hours or location (subject to mutual agreement, as this would likely constitute a variation to the employment contract) which would result in the employee minimising contact with others in the workplace;

• require employees to work from home;
• reduce the density of people in the workplace; or,
• provide sanitiser and personal protective equipment (PPE) such as masks or gloves to workers and other workplace participants.

For some employers, such as those who operate completely virtual offices, it may be feasible from a business perspective, to allow employees to continue working remotely, with little or no physical social interaction. For these businesses, it may be unreasonable for the employer to direct that all employees receive a COVID-19 vaccine.

However, for most employers, there are likely to be at least some WH&S reasons to direct employees to have the COVID-19 vaccine, even in offices where other measures are already implemented to keep the workplace COVID Safe.

Objecting on protected grounds

Employees can lawfully object to a direction if the direction is unlawful, that is, if it is inconsistent with anti-discrimination and work health and safety (WHS) laws. There are anti-discrimination laws at both the Federal and State Government level, that protect employees from being discriminated against, or being treated adversely because of, race, religion, sex, gender, ethnicity or disability.

For example, there are various religious communities which oppose vaccinations. If an employer insists on an employee having the vaccine when it is against the employee’s religion, this could give rise to an adverse action or discrimination claim.  

Objecting vaccine for WHS and medical reasons

Employers also have WHS obligations in NSW, modelled from the Federal Work Health and Safety Act (2001) (Cth) (WHS Act). Under these laws, employers must ensure, so far as is reasonably practicable, the health and safety of their workers and other persons who may be put at risk by the business. This means that where an employer tries to enforce a direction that may result in a breach of their WHS obligations, the employee may have a reasonable ground to object.

For example, an employee with a valid medical reason for not receiving the COVID-19 vaccine, such as being significantly immunocompromised, could be exempted from getting the vaccine due to the risk it could pose to their health and safety. For a full list of valid medical reasons, visit Services Australia.

If an employee does not have a legitimate medical reason/discrimination reason not to have the vaccine, employers may insist on employees receiving the vaccine on the basis that the employer has a legal obligation to ensure the workplace is safe for all employees.

Responding to an objection

Step One – Request Supporting Evidence

Employers may reasonably request that an employee provide supporting evidence for their objection to the direction. The employer must genuinely consider all evidence provided by an employee before making a decision as to whether the direction will be insisted upon. If the direction is reasonable and the employee does not have a good reason to refuse the direction, the employer should also consider what action if any, will be taken if the employee continues to refuse to comply with the direction.

Step Two – Respond

If an employee does not comply with a reasonable and lawful direction, the employer may take disciplinary action against the employee. Any disciplinary response should be reasonable and undertaken in accordance with the workplace policy. Responses can include:  

• a warning, formal or informal, written or verbal;
• performance management; or,
• dismissal for misconduct.

Dismissal for misconduct should generally be considered as a last resort and undertaken in accordance with a fair and lawful termination procedure. 

Key Lessons

If you wish to issue a direction to your employees to have the COVID-19 vaccine, keep in mind that an employee may exercise their right to refuse where they can provide a lawful and reasonable reason supported by appropriate evidence. Reasons such as “I just don’t want to get it” or “John didn’t have to get it so why should I?” alone may not meet the legal standard.

Employers should be prepared to justify the decision to direct employees to get the COVID-19 vaccine. A workplace policy should also be in place which provides employees with accessible information on the company’s COVID-19 policy, which should cover COVID-safe practices, including any directions for vaccines, and what procedure employee’s should follow if they believe they have a legitimate reason for refusing the direction.

If you require assistance with a COVID-19 workplace policy, or with managing employee concerns about the vaccine or returning to work, please don’t hesitate to contact a member of Coleman Greig’s Employment Law team, who would be more than happy to assist you today.