My employee refuses to be vaccinated against COVID-19: What do I do?

29 Nov 2021

As the whole of Australia moves towards reopening thanks to vaccinations against COVID-19, many State and Territory Governments have issued, or are intending to issue, public health directions requiring employees in certain industries and occupations be fully vaccinated.

We've already seen employees use false pseudolegal arguments to try to avoid being vaccinated, and as deadlines to be vaccinated rapidly draw near employers must make sure they are aware of their rights and obligations in the face of any employee who refuses to be vaccinated, especially if they are covered by a vaccine mandate.

Can I let an unvaccinated employee work?

If your business and your employees are covered by a vaccine mandate, the answer is a simple no.

The penalties for letting unvaccinated employees work in industries or occupations covered by a vaccine mandate vary depending on the State or Territory in which they are working, but as a guideline employers can face fines of approximately $100,000 and employees can face fines of approximately $20,000.

If your employees' industry or occupation is not covered by a vaccine mandate, then you are legally allowed to let unvaccinated employees work, but you should exercise caution if:

  • you as an employer have elected to implement a policy of required vaccinations; or
  • your industry is covered by a mandate that only applies in the event of a lockdown.

Can I implement a policy requiring my employees be vaccinated if my industry is not covered by a vaccination mandate?

The current trend of case law suggests that an employer is entirely within its rights to require its employees be vaccinated, provided it is a lawful and reasonable direction. Further guidance on this point is due soon when the Fair Work Commission hands down its decision in the dispute between the CFMMEU and BHP about vaccination policies.

To ensure the implementation of your vaccination policy is a lawful and reasonable direction, employers should consider whether the policy is a reasonable measure to protect its employees from hazards in the workplace. An occupational health and safety assessment can assist in making this determination. If the employer comes to the view that requiring its employees to be vaccinated will achieve this safety outcome, then implementing the policy will likely be considered a lawful and reasonable direction.

Employers should also consider whether they have an obligation to consult with their employees before implementing any policy requiring employees be vaccinated. Modern awards and enterprise agreements will contain any relevant consultation clauses, and employers should consider whether these clauses apply here.

Can I terminate my employee's employment if they refuse to be vaccinated?

Yes. If an employee refuses to be vaccinated, or refuses to show proof of vaccination, once a mandatory vaccination deadline comes into effect, then they will not be legally allowed to work. If the employee is not legally allowed to work, then they are no longer able to fulfil the inherent requirements of their role. This is grounds for the termination of an employee's employment.

If an employee refuses to be vaccinated where they are not covered by a vaccine mandate, but are subject to an employer's policy requiring them to be vaccinated, then they are refusing to follow a lawful and reasonable direction. They are also arguably no longer able to fulfil the inherent requirements of their role. These are both grounds for the termination of employment.

These principles do not, however, apply to a person who cannot be vaccinated on medical grounds, or who has been issued a temporary or permanent exemption from being vaccinated from the relevant State or Territory Government.

Care should be taken in dealing with employees who refuse to be vaccinated according to the policy of an employer who is not covered by a mandate. It is important to ensure that the policy is enforced, and employers not be tempted to let unvaccinated employees work after the deadline set, because this could undermine the policy and make it harder to enforce, or claims made against the employer in a Fair Work Commission or Court harder to defend.

Can an employee who refuses to be vaccinated take leave?

Yes. If an employee does not want to be vaccinated and has accrued annual or long service leave, then they may take that leave in accordance with the employer's relevant leave policies. An employer may take the view that some employees will eventually agree to be vaccinated, and that it will just take extra time for them to come around to the idea.

At their discretion, an employer may also allow an employee to take unpaid leave. An employer should however be careful to allow personal leave to be used if the employee's refusal is not medically indicated, as the use of personal leave in those circumstances would not be appropriate and would raise further issues.

This does not, however, remove the employer's ability to terminate the employee's employment for the reasons outlined above.

What if an employee gets vaccinated after I terminate their employment?

That's entirely up to you. If their employment was lawfully and appropriately terminated, you are unlikely to face any consequences as a result of the termination. If there is a desire from both parties to re-employ the former employee, then you may consider that option. Provided you are not discriminating against the employee for a protected reason if they apply for a job, you are not obliged to re-employ them on the basis that they were a former employee.

Vaccination status is not a protected reason that would give rise to a claim for discrimination.

Protect your employees, protect your business

Employers covered by a vaccine mandate should be making themselves aware of the requirements they need to fulfil to meet the mandate in their particular State or Territory, whether it be checking vaccination certificates, creating a register of vaccinated employees, or ensuring their privacy obligations with respect to their employees' vaccination information are being met.

Employers should also be communicating and engaging with their employees on the issue of vaccinations, explaining the employer's position, and setting out the consequences of non-compliance with any Government mandate or company policy.

Employers must also remember that they have an obligation to protect the health and safety of their employees, as each State and Territory has safety legislation requiring them to maintain a safe workplace.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.