COVID-19 Vaccine and your workplace: what you need to know

We answer key questions about your workplace rights when it comes to the rollout of the COVID-19 vaccine. 

Is COVID-19 vaccination mandatory?

The Federal Government’s policy is that COVID-19 vaccinations should be free and voluntary for most Australians, and it does not intend on passing any laws that require vaccinations to be mandatory. It has recommended through National Cabinet that State and Territory governments mandate vaccinations for certain workers.

State and Territory Governments have issued public health orders requiring the vaccination of some workers in high risk workplaces.

Not all public health orders will be the same in each State and Territory, and may change from time to time. It is important to review the public health orders that apply to each State and Territory.

To access the current public health orders in your State and Territory, please visit your relevant government health website.

Making a lawful and reasonable direction 

In the absence of Government mandates whether an employer can direct an employee to get vaccinated will depend on whether the direction is a “lawful and reasonable direction”. Determining if an employer direction is lawful and reasonable is highly fact dependant.

The FWO has provided advice on a range of factors employers should consider in determining whether a direction mandating the vaccination is lawful and reasonable.

To review the FWO’s guidance, please visit the Fair Work Ombudsman’s website.

It’s important to remember that the FWO’s guidance is not law.

When will a direction to get vaccinated be lawful and reasonable?

Determining whether a direction is lawful and reasonable is assessed on a case to case basis.

The FWO has highlighted that some considerations in assessing whether an employer direction is lawful include:

• whether a registered agreement, award, policy or employment contract includes a provision requiring vaccinations.
• whether a specific law, such as a Commonwealth, State or Territory health order requires an employee to get vaccinated.
   

Some considerations in assessing whether an employer direction is reasonable include:

• the nature of the workplace;
• Workplace Health and Safety (WHS) obligations;
• the effectiveness of the vaccine in reducing the risk of transmission;
• the nature of the employee’s work, and any risks associated with their work;
• whether the employee has a genuine reason for not being vaccinated; and
• vaccine availability.
   

Employees concerned about any employer directions on vaccines should get advice from their union or an employment lawyer. Similarly, employers should seek their own advice if they are considering making vaccinations mandatory in the workplace.

What if an employer makes it compulsory to have a COVID-19 vaccination to return to work, and a worker has an adverse reaction to that vaccine? Will they be covered by workers’ compensation?

While the laws in each State and Territory differ slightly, the answer to this is probably yes.

• In Victoria, Queensland and the Northern Territory workers will be covered and will be able to receive benefits for any adverse reactions to the vaccine.
  • Case law makes it clear that activities that are “reasonably incidental” to employment will entitle a worker to compensation if they suffer injury.
  • In this scenario, the employer has induced or encouraged the employee to engage in the activity of undergoing the vaccination which has resulted in adverse reaction.
• In Western Australia it would depend on the circumstances in which the vaccination has been administered, but the adverse reaction would likely be covered if a worker can show that the employer mandated the worker to have the vaccine.
• In NSW it would be expected that such a claim would be successful if the injury was sustained “in the course of employment” and work was a “substantial contributing factor”. 
  • In these scenarios, the injury would be covered by workers’ compensation.
  • This is a different test to that which applies to a worker who contracts COVID-19 at work, where a person’s work activities would need to be deemed the “main contributing factor” to contracting the virus.
• In South Australia it would be expected that such a claim would be successful if the injury was sustained “in the course of employment” and if employment was “a significant contributing cause” of the injury.