As New South Wales hit 80% of the eligible population double vaccinated, a semblance of normality is coming back into our lives as the months-long restrictions put in place to slow the spread of COVID-19 have started to be wound back.
That includes work, where for many months and perhaps as far back as the early stages of the pandemic in 2020, many people having been working from home. At the time of publication, COVID-19 public health orders in NSW stipulate that employers must allow for fully vaccinated people to work from home if reasonably practical. At the same time, many workplaces are allowed to re-open, and that means many employees are wondering when their boss will ask them to come back to the office.
While vaccination rates are high, people are still booking appointments to get their first or second jab. And while Commonwealth and State governments have mandated vaccinations for certain sectors, many other employees are left wondering if their employer will follow the lead of some of Australia’s largest companies and amend their policies to require workers and visitors to show proof of vaccination.
We’ve put together a list of the burning questions to provide some general guidance on employee’s rights when it comes to returning to the office and vaccination. Safe Work Australia and the Fair Work Ombudsman provide more detailed and information and seek immediate legal advice if you feel your employment or safety has been unfairly jeopardised.
Generally, an employer can require an employee to be vaccinated where:
The third point is the tricky one: the definition of ‘reasonable’ depends on the workplace. Factors considered such as the nature of work, employment contracts, employee circumstances, and workplace health and safety obligations.
Generally, an employer can require an employee to be vaccinated where:
The third point is the tricky one: the definition of ‘reasonable’ depends on the workplace. Factors considered such as the nature of work, employment contracts, employee circumstances, and workplace health and safety obligations.
Any employee who refuses to be vaccinated should be afforded the opportunity to explain their reasons to their employer before disciplinary action or dismissal is considered. Where refusal puts the employee in breach of is in breach of a specific law, or a lawful and reasonable direction requiring vaccination, employment can be terminated.
While many workers can challenge unfair or unlawful dismissal, the Fair Work Commission has found that in certain industries, such as childcare and aged care, it is not unfair or unlawful to dismiss a worker who refused to get vaccinations when they do not have a medical exemption.
According to the Fair Work Commission, an employer may ask to view evidence of an employee’s vaccination status without raising privacy obligations, provided they do not collect (make a record or keep a copy of) this information. Employee consent is required before an employer can collect vaccination status information, and collecting the information must be necessary for the employee to be able to do their job. Some laws, such as public health orders, require vaccination information to be collected, and consent is not required.
An employer generally has the legal right to direct employees who have been working from home due to COVID-19 to return to the office, especially if the employee’s employment contract identifies the office as the primary place of work. That means that employees can’t refuse to return to the office provided the direction to do so is lawful and reasonable. If they do, they may be subject to disciplinary action.
Under the Fair Work Act, there are only a few instances where workers have the right to make a request for flexible working arrangements, including work from home arrangements as well as flexible hours, and employers have an obligation to consider these.
In some circumstances, concerns about their health and safety may constitute a legitimate reason to request remote or flexible working arrangements. This could apply to people who have a medical condition that impacts their immunity, or makes them more susceptible to a respiratory infection, or you have been in close contact with, or need to care for someone who is COVID-19 positive. The Fair Work Commission advises that, “employers should consider sharing information about any steps they’ve taken to ensure a safe workplace and to help manage employee concerns”.
Employers have legal obligations to understand and comply with work health and safety laws to keep their employees safe. Any breach of COVID-19 orders is a breach of WHS laws. Speak to your employer immediately about your concerns and seek legal advice if you feel speaking up could threaten your employment.
One indirect impact the pandemic has caused is the information overload. From the constant news updates, to trying to stay on top of knowing when and where we need to wear a mask, the volume of information can be overwhelming and tiring. When it comes to your employment, your safety, and your livelihood, don’t second-guess, or leave it to chance. Get immediate legal advice that could help protect you and your family.
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