Tough choices for employers with unvaccinated workers

Companies will face tough decisions when unvaccinated workers are given the same freedoms as vaccinated in December.

People line up for vaccines. Picture: Tara Croser

The NSW government says unvaccinated people will be treated the same as vaccinated people after December 1 – but that does not mean workplaces will fall into line.

Tim McDonald of employment law specialist McCabes Lawyers, says the “overarching primary duty” of employers to provide safe workplaces for everyone will have an impact on how they manage unvaccinated employees.

Outgoing Premier Gladys ­Berejiklian said last week that from December 1, freedoms would be applied to all NSW citizens regardless of their vaccination status – a statement widely seen as suggesting vaccine passports would not be enforced.

Mr McDonald said the expectation that from December unvaccinated people would be able to participate in daily life like those who had been vaccinated “will not necessarily amount to unfettered rights in the workplace for the unvaccinated”.

“In some workplaces, mandatory vaccinations may be a reasonably practicable control measure to manage the risk of Covid-19 or to comply with public health orders,” he said.

The Fair Work Commission had recently upheld the dismissal of an employee fired for refusing the flu vaccine in an aged-care setting.

“This lends support to the proposition that employees in high-risk industries require vaccination and taking action against an employee who refuses to do so, is likely to be considered a lawful and reasonable direction,” he said.

It might also be considered reasonable for an employer to ­require unvaccinated employees to continue working from home.

“If an unvaccinated employee is attending the workplace, they may be required to wear masks, socially distance and complete rapid antigen tests,” he said.

With the increased risk of ­infection from the Delta strain, imposing such conditions might not be uncommon for employers aiming to provide safe workplaces for their employees and visitors.

Any mandatory vaccine policy had to comply with anti-discrimination law, he said, but in reality there were very limited circumstances in which an employee might be able to get an exemption on medical grounds.

“A mere conscientious objection on philosophical grounds to vaccination is not a protected ­attribute under discrimination law,” he said.

“Employers can defend a claim of discrimination if they can establish that being vaccinated is reasonable within the circumstances, or it might be that being vaccinated is an ‘inherent ­requirement’ of the job.”

Mr McDonald said that whether an employer should ­impose restrictions on unvaccinated employees in the workplace was a complex decision but employers could get guidance from the Fair Work Ombudsman, SafeWork Australia and the Australian Human Rights Commission as well as seeking specific legal advice.