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With vaccination requirements applying to some workers in the construction sector and indications that more jurisdictions will be using vaccination targets as a way through this pandemic, members are wanting to understand their vaccination obligations in the workplace.
While vaccinations in the workplace is a complex issue, this information sheet sets out some key information about your obligations regarding the vaccination of your workers including both your employees and any contractors you engage.
Unless specified by your local public health orders, your workers, including employees and contractors, are not required to be vaccinated in order to attend work.
If local public health orders require that workers be vaccinated in order to attend a construction site, the person who has control and management of a site (i.e. the builder) should not permit any person who does not meet any vaccination requirements, or who does not comply with the health orders to enter the site. The builder and the contractor may both be held responsible for a breach of the health orders (if any) and may receive a fine.
Different rules may apply depending on where you live and work. Members should refer to the following information sheets for state specific information:
Employers can only require their employees to be vaccinated where:
Employers should also consider how protections for employees under anti-discrimination laws may apply.
Yes, you can contractually require that new employees and contractors are vaccinated. However, despite being a legitimate contractual term the arrangement may lead to a risk of breaching anti-discrimination laws.
For example, if a prospective worker refuses to or cannot meet this requirement and is subsequently not offered the job this maybe be considered unlawful indirect discrimination.
Vaccination status is generally private and sensitive information. However, there are certain circumstances which would allow employers to request that their employees disclose information, including providing evidence of their vaccination status.
If a public health order requires a certain vaccination status to attend the site, then you can ask for information and evidence of vaccination status. Whether you can store or keep specific information will be determined by the public health order relevant to you.
If you have a company policy in place that mandates vaccination, and part of that policy requires a worker to disclose their vaccination status, then you are entitled to ask for information and evidence regarding the individuals vaccination status. HIA recommends that members seek legal advice in relation to any mandatory vaccination policy before seeking vaccination status information.
In most other situations, an individual is not compelled to share this information.
In terms of privacy implications, you may ask to view evidence of an employee’s vaccination status without raising privacy obligations provided you do not collect (i.e. make a record or keep a copy of) this information.
The COVID-19 pandemic does not automatically make it reasonable for employers to direct employees to be vaccinated.
Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable will dependant on the specific facts and needs to be assessed on a case-by-case basis.
A recent decision of the Fair Work Commission has stated that a direction for employees to be vaccinated will be lawful and reasonable, provided any vaccination requirement:
The direction must also comply with anti-discrimination laws.
The Fair Work Ombudsman (FWO) has provided a four-tier system to assist employers determine whether a mandatory vaccination direction would be considered lawful and reasonable.
HIA members working in the residential building industry would generally fall within the FWO’s tier three which is described as work where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment.
When determining whether to ask your employees to get vaccinated you should consider:
Employers can only collect information about employee’s vaccination status in particular circumstances where the employee consents and the collection is reasonably necessary for your workplaces’ functions and activities.
Accordingly, employers should abide by the following key rules when collecting vaccination information:
As is the case with all workplace policies, that is a decision for your individual business depending on your circumstances.
If you are considering providing some guidance for your employees and contractors regarding vaccinations on your construction sites consider:
A recent decision of the Fair Work Commission has highlighted the importance of consultation prior to deciding to implement mandatory vaccinations at a workplace.
Specifically, vaccination requirements should only be introduced:
If an employee is refusing to get vaccinated as required by a public health order, agreement or contract, you should ask the employee their reasons for refusing their vaccine to determine if there is a legitimate reason for not being vaccinated (e.g. medical condition).
If the employee has a legitimate reason for not being vaccinated, you should consider whether there is any alternative work arrangements available, such as allowing the employee to work from home or perform different duties.
If an employee does not have a legitimate reason for not being vaccinated, you may be able to take disciplinary action, depending on the terms of any agreement, award, contract, policy, or public health order.
Employer’s have limited ability to suspend employees without pay, unless their agreement or award allows them to. Employee’s may have a claim for unfair dismissal or other claims against an employer who dismisses them or treats them adversely as a result of their vaccination status.
Accordingly, HIA strongly warns members against suspending or terminating any employee based on their vaccination status.
It is unlikely that you will be able to stand down the employee for refusing to be vaccinated. You may only stand down your employee in certain circumstances. For further information, please refer to the HIA information sheet - When can I stand down my employees?
Generally, it’s unlikely that an employee could refuse to attend a site because a co-worker isn’t vaccinated. The reasons for this include:
If a contractor refuses to attend a site because a co-worker isn’t vaccinated, that is a decision for that independent contractor. You will need to discuss the contractual implications of the refusal by the contractor to attend the site.
You may mutually agree to end the contract or put in place other COVID safety measures to reduce the risks associated with that contractor coming into contact with other workers.
If an employer can require an employee to be vaccinated (for example, because they have a mandatory vaccination policy in place), the employer should cover the employee’s travel costs and give the employee time off work without loss of pay if the appointment is during work hours.
If an employer does not require their employees to be vaccinated, you can still discuss ways of supporting your employees to receive a vaccine. These arrangements could include:
No. Employees cannot take personal carer's leave to get vaccinated against COVID-19. This is because the entitlement to personal carer's leave under the National Employment Standards is only available when an employee is unfit for work because they are ill or injured.
Full-time and part-time employees can use paid personal carer's leave if they can't work because they’re unwell after being vaccinated. This does not apply to casual workers who are not entitled to paid personal carer's leave.
The various vaccinations are not without some risk, and it is possible that an employee may have an adverse reaction to receiving a vaccine. If the reaction can be defined as an ‘injury’ under workers compensation legislation and there is a link to employment (in the course of employment) then it may be possible for the employee to make a workers compensation claim. The employee would need to suffer a ‘significant’ adverse reaction to the vaccine, for example, headaches, fever, fatigue and similar illness would not qualify a worker eligible for workers compensation.
For example, this may depend on how involved you were as the employer in the employees vaccination decision:
The Australian Government has established a COVID-19 Vaccine claim scheme which will help guide any person who has suffered a significant adverse reaction from the vaccine which causes either injury or economic loss.
The Scheme will cover the costs of injuries above $5,000.00 due to a proven adverse reaction to a COVID-19 vaccination.
Any person who suffers an adverse reaction can register their intent to claim here: COVID-19 vaccine claims scheme | Australian Government Department of Health
Under WHS laws you have a legal obligation to, as far as reasonably practicable, ensure the health and safety of workers in the workplace. You should continue to take precautions to prevent the spread of COVID-19 in the workplace.
Members can continue to refer to HIA’s Making space on site guidelines to assist in managing the risks associated with COVID-19.
When considering the role that vaccinations play in managing your WHS obligations during this pandemic, HIA recommends applying the same risk assessment process that you would apply to physical risks and hazards to the risks and hazards associated with COVID-19.
When determining whether you should or could require your workers to be vaccinated, you should consider if COVID-19 vaccines are a ‘reasonably practicable’ control measure for your workplace.
There are two elements to what is ‘reasonably practicable’:
To determine what is reasonably practicable you could take into account:
Some examples of reasons that may make it unlikely that a requirement will be reasonably practicable in a workplace at this point may include that:
These considerations may also impact whether a direction to an employee to get a vaccination is reasonable.
Vaccinations are currently not mandatory therefore a homeowner cannot ‘force’ you and your workers to be vaccinated prior to coming on site. However, the homeowner may:
Entering a persons home at this time can raise questions about COVID safety. It is essential that builders and contractors are mindful of the customers needs and if concerns are raised, make the appropriate decisions together about the work being undertaken.
Ultimately however whether or not you agree to the homeowners request is a business decision for you to make.
While our anti-discrimination laws are based on age, sex, race and disability and they do not include the vaccinated status of a person members should be mindful of potential issues arising from unlawful indirect discrimination.
Whether unlawful indirect discrimination arises will depend on:
One way to ensure that you do not indirectly discriminate is to consider the implications of vaccinations on those:
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