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On Friday, August 13 the Fair Work Ombudsman updated its advice in relation to the issue of COVID vaccination and the workplace. This topic has become quite controversial over recent weeks and looks to be posing businesses with significant issues going forward.

The Australian Government (Federal) position is that receiving the vaccination is free and voluntary, however it concurrently aims to encourage as many people as possible to be vaccinated.

An issue which may also bring further uncertainty is that the majority of our workers are employed under the Federal Fair Work legislation and each of the States has adopted varying approaches to the vaccine under their enacted Health legislation. So, the intersection of each of these States laws and how they interplay with the Federal Government employment law needs to be considered.

Managing Vaccinations in the Workplace

Many employers are considering introducing workplace policies. Many workplaces are covered by an agreement or an award and most of these will require that a consultation takes place. Employers who are not covered by an award or agreement should consider their specific circumstances and seek legal advice in relation to their consultation requirements before implementing any policies.

Workplace Health and Safety Laws also require employers to consult with employees about their safety at work and coronavirus is not an exception to this requirement.

Pay and Sick Leave for Vaccination

Where an employer can mandate that an employee have a vaccine then the Employer should pay for the travel time and paid work time to have the vaccination.

An employee can’t usually take sick leave to get a COVID 19 Vaccination because they are not sick, and the NES specifies that an employee must be unfit for work to be able to access sick leave. However, if they become unwell after receiving the vaccination then they may be able to access sick leave if this is available to them. Noting that casual employees are not entitled to sick leave.

When can an Employer mandate that an employee must have a vaccine?

Each State has enacted differing provisions and requirements under their Public Health Orders and employers and employees based in those areas are obliged to comply with those orders. For example In NSW the NSW government has enacted Public Health legislation requiring employers to require all airport workers, quarantine workers and employees in air transportation including drivers to and from the airport to be vaccinated. In Queensland, the State Government required health service employees, Ambulance and hospital contractors as well as all residential aged care workers to be vaccinated; and in South Australia the State Government requires workers in the quarantine system, airport, health care and transportation as well as staff, contractors and volunteers in aged care to be vaccinated.

What if an employee refuses to be Vaccinated?

Just like any other matter in the workplace the employer has an obligation to consult and find out why. Employers can make lawful and reasonable directions for employees to comply.

What is Lawful and Reasonable?

Outside of these specific requirements set out under each State’s health orders, an Employer will need to consider if it is reasonable and lawful to request an employee to have a vaccination and even in relation to new employees it must be considered whether requiring an employee to be vaccinated before offering them a position is adverse action under the Fair Work Act protections or discrimination under the Australian Human Rights protections. It may also be that employers are only able to collect proof of vaccination in very limited circumstances because of protections under Privacy Act. (More information is available about this from the office of the Australian Information Commissioner).

Deciding whether as an employer you can issue a lawful and reasonable direction to an employee to get vaccinated there are many factors to consider, for example is social distancing possible in the workplace, is it a client facing role and what is the extent of the COVID 19 transmission in the location, as well as the vaccine availability More information about workplace health and safety obligation are available at Safe Work Australia.

The coronavirus pandemic does not automatically make it reasonable to direct employees to be vaccinated. The ombudsman has developed a general guide and classified work into 4 tiers to assist employers in making these decisions.

Tier 1 workers include for example border control and quarantine workers, and Tier 2 workers include those working in health care or aged care, workers who are in close contact with vulnerable people.

It is likely that it may be reasonable to require these workers to be vaccinated.

Tier 3 workers may interact with other employees and customers or the public in the normal course of employment. Tier 4 employees have minimal face to face interaction as part of their normal employment (e.g. where they primarily work from home)

It is unlikely to be reasonable to require a Tier 4 worker to be vaccinated and for a Tier 3 worker further consideration will need to be given e.g., have there been many community transmissions, where there are community transmission is the employer in an area does the business needs to remain open during lockdown.

There is no blanket rule and each circumstance needs to be considered individually.

Can an Employee refuse to attend the workplace if a co-worker isn’t vaccinated?

In short… No. Vaccination is not mandatory for all employees and a co-worker may have a legitimated reason for not being vaccinated.

An employee can be reasonably directed to attend the workplace. However, again there may be extenuating circumstances which should be considered if this is lawful and reasonable. Otherwise, it may be a disciplinary action to be handled in the usual way.

There are multiple pieces of legislation intersecting to determine what is a reasonable and lawful direction from an employer. This is not legal advice but general in nature. You should seek legal information specific to your organisation.

At Voice Lawyers we are available to help you navigate these tricky times. Please feel free to give us a call (02) 92611952 or email for assistance with your workplace matters.

Next – Can I ask if my employee is vaccinated? Employers Privacy obligations in collecting immunisation Information.

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