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COVID-19: The Big Questions - Can I mandate that staff be vaccinated? Can I require them to provide evidence?

Perhaps not surprisingly, we're providing our clients with a lot of support at the moment in relation to COVID-19 vaccinations, so we thought we'd address the 2 most common questions:

1. Can I mandate that staff be vaccinated?

The validity of requiring compulsory vaccinations for any employee effectively comes down to a judgement as to whether the requirement is "lawful and reasonable" in the circumstances. Generally speaking, there are 3 reasons that a vaccination mandate might be lawful and reasonable:

REASON 1: If it is a government requirement via a Public Health Order or similar that employees in your industry/workplace be vaccinated, it should be both "lawful and reasonable" to require vaccinations.

REASON 2: It will generally also be OK where vaccination is a specific requirement documented in an enterprise agreement, other registered agreement or employment contract.

REASON 3: Outside of those arrangements, the question of whether a vaccination mandate is "lawful and reasonable" will likely amount to a determination as to the extent is reasonably necessary to comply with work health and safety obligations. This in turn comes down to an assessment of the particular circumstances of the case, for example: the nature of the work, the working environment, the nature and frequency of client/customer contact, the location of the work etc..

Our view is that employers should be completing and documenting risk assessments that account for different positions, work locations etc… to inform their policy position in relation to COVID-19 vaccinations. Information relating to completing risk assessments is available via Safe Work Australia. If you need direct support let us know and we can provide a referral to a WHS specialist.

The Fair Work Ombudsman also recently published a 4-tier system to help guide employers in their decision making relating to the vaccination of their staff, which should be referred to: click here for details.

If you are making vaccinations a requirement for any staff, to keep clear of any potential claims of discrimination, you need to ensure that there are exceptions for those who, for example, are unable to be vaccinated on medical or age-based eligibility grounds.

You should also In our view have a vaccination policy in place and consult with those workers impacted by that policy before finalising and implementing it.

Finally, exercise caution in relation to your communications about this sensitive issue: it's correct that vaccination is entirely a personal choice, so you cannot and should not "make" someone get vaccinated. You are however, as an employer, entitled to issue lawful and reasonable directions to your employees, particularly where those direction pertain to ensuring the health and safety of your workers and others.

2. Can I require staff to provide evidence of their vaccination status?

If as an employer you lawfully and reasonably require employees to be vaccinated (for 1 of the 3 reasons mentioned above), yes, it would in our view also be a reasonable direction for the employer to require an employee to provide this information.

If it's not a requirement that they be vaccinated it's probably not an enforceable direction. You can ask though not require the employee to provide the information.

If you are requiring/asking for the info, the less problematic/safer option is just to sight the evidence and not keep a copy or retain that information. If you feel for whatever reason that you need to retain or communicate the information to others, we'd suggest you review information published by the Office of the Australian Information Commissioner – refer here.

Requirements are changing rapidly, so always be sure you have current information. This article was written 13/10/21 and based on the current situation in NSW. It is general information only and should not be regarded as legal or professional advice. Speak to your legal advisor or contact us if you are seeking guidance relevant to your particular circumstances.

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