COVID 19 vaccinations and the workplace

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. 

Key facts

• Receiving a vaccination is free and voluntary. 
• Some jurisdictions are making vaccination a requirement for workers in the construction industry in order for them to return to sites.
• While there may be implications for the work you can carry out if you are not vaccinated this is ultimately a personal choice for the individual. 
• You are encouraged to talk with your workers to respond to any vaccination requirements and to find solutions that suit the needs of the individual and the specific requirements that apply to your workplaces. 
• There is a Government Vaccine Claim Scheme available for any person who suffers a significant adverse reaction to the vaccination. 

Vaccinations for workers

Do my workers need to be vaccinated before attending a site?

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:

• COVID-19 vaccination requirements for Victoria
• COVID-19 vaccination requirements in NT
• COVID-19 vaccination requirements for WA

Can I ask my employees to get vaccinated?

Employers can only require their employees to be vaccinated where:

• A specific law (such as a state or territory public health order) requires an employee to be vaccinated.
• The requirement is permitted by an employment contract, enterprise agreement or Modern Award.
• It would be lawful and reasonable for an employer to give their employees a direction to be vaccinated. This must be assessed on a case-by-case basis. 

Employers should also consider how protections for employees under anti-discrimination laws may apply. 

Can I require newly engaged workers to be vaccinated?

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.

Can I ask my workers about their vaccination status?

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. 

Required or authorised by law

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. 

Company policy

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.

What is a lawful and reasonable direction?

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:

• is directed at ensuring the health and safety of workers
• has a logical and understandable basis
• is a reasonably proportionate response to the risk created by COVID-19
• is developed having regard to the circumstances of the site
• is timed having regard to the spread of COVID-19 in the local area at the relevant time; and
• is implemented only after encouraging and facilitating vaccination for workers as much as practicable.

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: 

• The working environment/industry:
  • Whether requiring a COVID-19 vaccination would be a ‘reasonably practicable’ control measure for the workplace, including the degree to which risk of COVID-19 exposure or transition can be mitigated by other control measures. Since the start of this pandemic the residential building industry has implemented a range of COVID health and safety measures to manage the risk of COVID on residential building sites using HIA’s Making space on site guidelines.
  • The disruptive impact any COVID-19 infection in the workplace on the business.
• The public health environment:
  • The level of community transmission of COVID-19 in the location where the employee’s job is being performed.
  • Whether the employee has access to the vaccine.

Vaccination Information and Privacy Laws

Am I allowed to collect information regarding vaccination status under Australian privacy laws?

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: 

• You must have clear and justifiable reasons for collecting employee vaccination status information for it to be reasonably necessary. If you do not have clear and justifiable reasons, you should not collect vaccination status information.
• You can collect vaccination status information without consent only in circumstances where the collection is required or authorised by law (including a state or territory public health order or direction).
• Only the minimum amount of personal information reasonably necessary to maintain a safe workplace should be collected, used or disclosed.
• Vaccination status information should only be used or disclosed on a ‘need-to-know’ basis.
• You must inform employees about how their vaccination status information will be handled. 
• Ensure you take reasonable steps to keep employee vaccination status and related health information secure.

Workplace Policy 

Do I need a workplace policy on COVID-19 vaccines?

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:

• Any applicable awards, such as the Building and Construction General Onsite Award that includes a consultation clause requiring employers to consult with employees if an employer intends to implement significant workplace changes. This means that before introducing or changing a workplace policy about vaccinations, employers should review their applicable award, employment contract or existing workplace policy to find out:
  • whether they need to consult under that document (as well as needing to consult under work health and safety laws);
  • who they need to consult with (including any employee representatives or unions); and
  • how they need to consult about the proposed workplace change.
• Under work health and safety (WHS) laws, you must consult with workers about possible control measures to address WHS risks. This includes consideration of a new policy about COVID-19 vaccinations or changes to an existing vaccination policy. You can find more information on specific COVID-19 WHS issues and consultation obligations under WHS laws from Safe Work Australia.
• Determine a process for managing refusals.
• Determine how you manage recordkeeping and privacy.

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:

• after conducting a risk assessment tailored to each category of worker to determine whether vaccination is a necessary and proportionate control to protect the health and safety of employees; and
• after meaningfully consulting with the workforce on any risk assessments and vaccination requirement proposals.

Unvaccinated and attending work 

A worker is refusing to get vaccinated, what should I do? 

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). 

Legitimate reason to not be vaccinated 

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. 

Disciplinary action 

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. 

Stand down 

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?

Can an employee refuse to attend a site because a co-worker isn’t vaccinated?

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:

• vaccination isn’t mandatory for all worker and many workplaces won’t be able to require their workers including their employees to be vaccinated
• their co-worker may have a legitimate reason not to be vaccinated (for example, a medical reason); or
• if an employee refuses to attend a site because a co-worker isn’t vaccinated, their employer can direct them to attend the workplace if the direction is lawful and reasonable. Whether a direction is lawful and reasonable depends on all the circumstances.

Can a contractor refuse to attend a site because a co-worker isn’t vaccinated?

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.

Employee leave entitlements

My employee wants to get the vaccine do I have to pay them for that? 

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:

• requesting and taking leave (for example, annual leave or unpaid leave).
• starting work later or finishing early (to help employees to attend a vaccination appointment around work hours).
• working from home (to help an employee attend a local vaccination appointment).
• providing paid time off for their employees to get vaccinated against COVID-19.

Can an employee take personal carer's leave to get vaccinated against COVID-19?

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. 

Can employees take paid time off if they feel unwell after being vaccinated?

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.

Vaccinations and workers compensation

Am I liable if my employee has an adverse reaction to a vaccination?

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:

• If you have simply shared government information about the COVID-19 vaccine, then a link with employment is unlikely.
• If you have mandated vaccinations through a company policy, it is more likely that an adverse reaction may be grounds for a workers compensation claim.

Commonwealth Vaccine Claims Scheme

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

Vaccinations and Work Health and Safety obligations

How do I manage my Work Health and Safety obligations in relation to vaccinations?

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’:

1. What can be done? What is possible in the circumstances for ensuring health and safety? 
2. Is it reasonable in the circumstances to do all that is possible?

To determine what is reasonably practicable you could take into account:

• The likelihood of exposure to COVID-19 occurring; and
• The degree of harm that might result from exposure to COVID-19; and
• What you know, or should reasonably know about exposure to COVID-19, and about the ways of eliminating or minimising the risk; and
• The availability and suitability of ways to eliminate or minimise the risk; and the cost associated with available ways of eliminating or minimising the risk.

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:

• public health experts have not made the vaccine mandatory;
• there may not yet be a vaccine available for all your workers or for the age of your particular workers; or
• there is limited information about the impact to COVID-19 vaccines on its transmission.

These considerations may also impact whether a direction to an employee to get a vaccination is reasonable.

Vaccinations and homeowners

The homeowner wants the workers on site to be vaccinated – what should I do?

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:

• choose a different builder based on vaccination status; or
• request a contractual term regarding vaccination status be included in the contract.

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.

Vaccinations and anti-discrimination laws

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:

• whether groups of people with an employee’s particular attributes are less able to comply with the requirement imposed by the employer than the broader population; and
• whether the requirement imposed is reasonable in the circumstances. 

One way to ensure that you do not indirectly discriminate is to consider the implications of vaccinations on those:

• for whom the vaccine has not been approved for use (age discrimination); and
• with medical or other reasons (disability discrimination.)

To find out more, contact HIA's Workplace Services team

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