When can I direct an employee to get the COVID-19 jab and what can I do if they refuse?
By Bianca Mazzarella
31 March 2021
Further to our article entitled ‘Can an employer force an employee to get the COVID-19 jab?’, further guidance has now been released from the Federal government and the Fair Work Ombudsman (‘FWO’) to assist employers in understanding their obligations in relation to when they can direct employees to receive the COVID-19 vaccination.
FWO further guidance
The FWO has now provided further guidance in relation to when it is lawful and reasonable for an employer to direct that an employee receive the vaccine.
Such circumstances include:
- where the employee interacts with people with an elevated risk of being infected with the virus (e.g. working in hotel quarantine or border control); or
- where the employee has close contact with people who are most vulnerable to the virus (e.g. working in health or aged care).
What can an employer do if an employee refuses to be vaccinated?
The FWO has made the following recommendations to employers in circumstances where the employer has issued a lawful and reasonable direction to its employees to be vaccinated but they refuse:
- first ask the employee to explain their reasons for refusing the vaccination (including whether they have a legitimate reason for not being vaccinated);
- consider and discuss alternative options available to the employee instead of the vaccine to address the risk posed by COVID-19;
- consider any right to stand down or suspend the employee under their employment contract or industrial instruments;
- assess the reasonableness and appropriateness of any disciplinary action in the circumstances; and
- as a final option, take disciplinary action, including termination of employee, although be wary of anti-discrimination laws and an employee’s general protection from adverse action.
Can an employer request proof to verify that the employee has received the vaccine?
The FWO has stated that employers who have provided a lawful and reasonable direction to employees to receive the vaccine can request that an employee provide proof of their vaccination.
Refusal of an employee to provide such proof may leave the employer with no option but to take disciplinary action against the employee.
You should obtain legal advice prior to taking disciplinary action against an employee for refusing to take the vaccine.
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