With COVID-19 vaccinations rolling out in Australia, employers may be considering asking their employees whether they have been, or will be, vaccinated against the virus. They may also be wondering whether they can, or should, require that their employees get the vaccine.
It is extremely important that employers consider their obligations, as well as their employees’ rights in relation to the collection, use, storage and disclosure of information regarding the health of employees, and in particular in relation to their COVID-19 vaccination status.
They should also understand that there are very limited circumstances under which they may be permitted to mandate that their employees are vaccinated.
In order to assist employers in managing the COVID-19 vaccination roll-out, KKI has addressed some of these key considerations below.
Can employers require that their employees are vaccinated?
The Fair Work Ombudsman has indicated that the majority of Australian employers should assume that they cannot require their employees to get the COVID-19 vaccine. However, there may be some very limited circumstances under which an employer can do so. These instances will be highly fact dependent, so employers should be cautious and thoroughly consider various factors prior to doing so, including:
- The specific workplace;
- The employee’s individual circumstances;
- Whether there is an applicable Public Health Order or law, requiring COVID-19 vaccinations;
- Any relevant enterprise agreements which apply to the employee(s); and
- Any provisions in the relevant employment contract(s) referring to the COVID-19 vaccine.
Employers seeking to rely on enterprise agreements, workplace policies or employment contracts to require their employees to be vaccinated should consider whether any provisions relating to COVID-19 may conflict with anti-discrimination laws and other general protections under the Fair Work Act 2009 (Cth) (Fair Work Act).
Where no agreement or contract requiring vaccinations applies, employers will only be able to direct employees to get the vaccine if that direction is considered lawful and reasonable in all the circumstances.
The Fair Work Ombudsman has indicated that the COVID-19 pandemic alone will not automatically make it reasonable for an employer to direct their employees to get vaccinated. Whether or not a direction is deemed to be lawful and reasonable, will largely depend on the industry of the business and the specific role of the employee. Employers considering making a direction in relation to the COVID-19 vaccination should seek legal advice before proceeding.
Can employers collect information about an employee’s vaccination status?
In addition to their employees’ rights under the Fair Work Act, employers need to consider the privacy of their employees and their obligations as an employer under the Privacy Act 1988 (Cth), if they are considering requesting information in respect of an employee’s vaccination status.
In order to provide some guidance for employers seeking to obtain this kind of employee health information, the Office of the Australian Information Commissioner (OAIC) has released guidelines on coronavirus vaccinations and the privacy obligations to employees (OAIC Guidelines). KKI has outlined some of the key considerations from the OAIC Guidelines below.
- Employers should only collect information about an employee’s vaccination status if it is necessary for their business’ functions and activities (which may include the prevention or management of COVID-19).
- Employers should only collect information about an employee’s vaccination status if that employee consents to the collection. Employees should understand why their employer needs to collect this information and what it will be used for, and employers should give employees a genuine opportunity to provide or withhold their consent. Consent must be freely given and employees should not feel pressured in any way to provide their consent.
- Employers should only collect, use or disclosure the minimum amount of personal information that is reasonably necessary to maintain a safe workplace, and should only do so on a ‘need-to-know’ basis. This means that employers should collect as little information as possible, and limit their enquiries to those that are absolutely necessary for preventing or managing COVID-19.
- Employers must take reasonable steps to ensure that employee vaccination status information is kept secure. They should implement measures that cover all security areas, including information and communications technology and physical security.
If you are an employer navigating the COVID-19 vaccination roll-out, or need advice in relation to your business and/or employees more broadly, the KKI Employment and Commercial teams are here to help.