COVID-19 vaccinations: workplace rights and obligations Can an employer require an employee to be vaccinated?

Can an employer require an employee to be 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 (see COVID-19 vaccinations: legislation and public health orders)
The requirement is permitted by an enterprise agreement, other registered agreement or employment contract (see Agreements or contracts relating to vaccinations), or
It would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis (see Lawful and reasonable directions to get vaccinated).

You can get Vaccinated if

One or more of these circumstances can apply when an employer is requiring an employee to be vaccinated. For example, an employer could rely on a state public health order that requires their employee to be vaccinated to give the employee a lawful and reasonable direction not to work unless they are vaccinated.

You can get Vaccinated if

An employer may in certain circumstances be required to direct employees to get vaccinated to comply with obligations under a work health and safety law. Information on work health and safety obligations is available from Safe Work Australia. Go to Commonwealth, state or territory workplace health and safety regulators to learn what work health and safety laws apply.

Legislation and public health orders requiring vaccination against coronavirus

State and territory governments have made and may continue to make public health orders and directions requiring workers to be vaccinated against COVID-19 in their state or territory. Examples of industries affected include:

Aged care
Quarantine and transportation
Health care.

Employers and workers need to comply with any public health orders and directions that apply to them.

To read the current public health orders and directions requiring vaccination in various states and territories, see COVID-19 vaccinations: legislation and public health orders.

For information on other requirements and restrictions for businesses in each state and territory, see List of enforceable government directions during coronavirus.

Lawful and reasonable directions to get vaccinated

Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable is fact dependent and needs to be assessed on a case-by-case basis. Just because it may be lawful and reasonable to give a direction to one employee, that doesn’t mean it will automatically be lawful and reasonable to give the same direction to another employee or to all employees.

You can get Vaccinated if

For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).

Things to consider

There are a range of factors that may be relevant when determining whether a direction to an employee is reasonable. Things to take into consideration include:

The nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service).
The extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community.
The terms of any public health orders in place where the workplace is located.he effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant (find out more at the Department of Health: statement from ATAGI)
Work health and safety obligations (find out more at Safe Work Australia).
Each employee’s circumstances, including their duties and the risks associated with their work.
Whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
Vaccine availability.

There are a range of factors that may be relevant when determining whether a direction to an employee is reasonable. Things to take into consideration include:

Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
Tier 3 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 (for example, stores providing essential goods and services).
Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

Possible Title

A workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time.

The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus.

An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.

An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.

For employees performing Tier 3 work:

Where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable
Where community transmission of COVID-19 is occurring in an area, and an employer is operating a workplace in that area that needs to remain open to provide essential goods and services, a direction to employees to receive a vaccination is more likely to be reasonable.

Regardless of the tier or tiers which may apply to work performed by employees, the question of whether a direction is reasonable will always be fact dependent and needs to be assessed on a case-by-case basis. This will require taking into account all relevant factors applicable to the workplace, the employees and the nature of the work that they perform.

Can an employee refuse to be vaccinated?

An employee might refuse a direction to be vaccinated even if they are required to under a specific law, agreement or contract, or after receiving a lawful and reasonable direction. In these situations, an employer should ask the employee to explain their reasons for refusing the vaccination. An employee may have a legitimate reason for not being vaccinated. For example, the employee could have an existing medical condition that means vaccination is not recommended for them. Employees should speak to their doctor if they have concerns about receiving a vaccination because of a medical condition.

If the employee gives a legitimate reason for not being vaccinated, the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements, such as asking the employee to perform different duties or to work from home. Find out more at Alternative work arrangements.

Where an employee has a reason for not getting vaccinated, an employer may be able to request evidence of the reason for their refusal.

In some circumstances where an employee refuses to be vaccinated, employers may be able to consider disciplinary action. Whether disciplinary action is reasonable will depend on the circumstances.

If an employee refuses to be vaccinated, can an employer require evidence about why they’ve refused?

If an employer has provided a lawful and reasonable direction to be vaccinated and an employee refuses, the employer can ask the employee to provide evidence of the reason for their refusal.

Employers are only able to collect evidence of vaccination in limited circumstances. More information about workplace privacy is available at:

Can an employer take disciplinary action if an employee refuses to get vaccinated?

An employer may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of:

A specific law, or
A lawful and reasonable direction requiring vaccination.

Before taking any action, an employer should talk to the employee and discuss the employee’s reasons for not wanting to get vaccinated. For example, the employee may have a medical condition that means vaccination is not recommended for the employee.

Whether an employer can take disciplinary action will depend on the individual facts and circumstances. To work out if and how an employer can take disciplinary action, employers should consider the terms, obligations and rights under any applicable:

Enterprise agreement or other registered agreement
Award
Employment contract
Workplace policy
State or territory public health order.

If an employee refuses a direction to be vaccinated, it’s unlikely that their employer can stand down the employee. Stand down is only available in certain circumstances.

Further, employers generally don’t have the power to suspend employees without pay unless an enterprise or other registered agreement, award or employment contract allows them to.

Employees have various protections against being dismissed or treated adversely in their employment. Employers should make sure that they follow a fair process and have a valid reason for termination, or they may breach unfair dismissal or adverse action laws under the Fair Work Act.