Over the past few months, the rules around what is and isn’t acceptable, appropriate or lawful behavior around mandating vaccinations in the workplace have been murky. However, it has recently been confirmed that employers will be allowed to ask their staff if they have received the COVID-19 vaccination so they can factor this into operations and be able to guard against infections occurring in the workplace.
Guidelines for employers
Guidelines have been published by the Office of the Australian Information Commissioner that informs employers of the types of information they are able to about a worker’s vaccination, but the circumstances under which this can occur are limited.
The issue of privacy has been widely debated, and it is important to note that on this topic, key guidelines include that employers can only collect personal information of the minimum quantity that is reasonably necessary to comply with safe working conditions, and they must also take reasonable steps to ensure that any health information provided by the worker is kept secure.
If required or authorised by law, the guidelines also stipulate that the collection of information about a worker’s vaccination status is allowed to occur without the worker’s consent.
Have any laws changed?
Prime Minister Scott Morrison has warned against mandating vaccinations in the workplace through the changing of a law that would make the COVID-19 vaccination mandatory. He has also reiterated that it is not the government’s place to provide private companies with legal advice.
Instead, employers have the right and are encouraged to seek information about the worker’s vaccination status and are guided to act on any information they receive about unvaccinated workers, such as if their choice to remain unvaccinated poses a risk to other staff members or customers.
What action can employers take if staff are unvaccinated against COVID-19?
Employers are encouraged to take reasonable steps when managing unvaccinated workers. An example of this might be to place the employee on duties where they are not working with the public or with other staff members or to move them away from other people to complete their work in an environment that reduces the risk of them spreading, or indeed contracting, the virus.
Will employers ever be allowed to mandate that their workers are vaccinated?
Leaders in the private sector have voiced their frustrations at the federal government’s unwillingness to make changes to legislation or regulation that would provide employers with the authority to mandate that their workers are vaccinated, however, Prime Minister Morrison has expressed that the federal government is “not going to seek to impose a mandatory vaccination program by the government by stealth.” Instead, he has urged the private sector to use the “already existing powers that employers have, both in terms of lawful directions, reasonable directions to their employees” to take actions based on information they are lawfully allowed to seek.
What rights do business owners have to refuse service to unvaccinated people?
Business owners maintain property rights that allow them to control who they allow to come in and out of their premises and, in turn, who they choose to serve. By extending those property rights to exclude unvaccinated people from entering the premises business owners possess the authority to exclude employees from entering the premises.
If you are a business owner looking for clarity about your rights to ask employees if they are vaccinated, take steps to mitigate the risk of having an unvaccinated worker, or want to know how you can protect your business from unvaccinated customers we can help.