When can an employee lawfully object to a direction to get the vaccine?
Once a direction has been made, an employee may refuse to comply where that direction is unreasonable. A direction may be unreasonable if an employer can reasonably make alternative arrangements that will result in the employee not having to have the vaccine. For example, an employer could:
- agree to vary work duties, hours or location (subject to mutual agreement, as this would likely constitute a variation to the employment contract)
which would result in the employee minimising contact with others in the workplace;
- require employees to work from home;
- reduce the density of people in the workplace; or,
- provide sanitiser and personal protective equipment (PPE) such as masks or gloves to workers and other workplace participants.
For some employers, such as those who operate completely virtual offices, it may be feasible from a business perspective, to allow employees to continue working remotely, with little or no physical social interaction. For these businesses, it may be unreasonable for the employer to direct that all employees receive a COVID-19 vaccine.
However, for most employers, there are likely to be at least some WH&S reasons to direct employees to have the COVID-19 vaccine, even in offices where other measures are already implemented to keep the workplace COVID Safe.
Objecting on protected grounds
Employees can lawfully object to a direction if the direction is unlawful, that is, if it is inconsistent with anti-discrimination and work health and safety (WHS) laws. There are anti-discrimination laws at both the Federal and State Government level, that protect employees from being discriminated against, or being treated adversely because of, race, religion, sex, gender, ethnicity or disability.
For example, there are various religious communities which oppose vaccinations. If an employer insists on an employee having the vaccine when it is against the employee’s religion, this could give rise to an adverse action or discrimination claim.
Objecting vaccine for WHS and medical reasons
Employers also have WHS obligations in NSW, modelled from the Federal Work Health and Safety Act (2001) (Cth) (WHS Act). Under these laws, employers must ensure, so far as is reasonably practicable, the health and safety of their workers and other persons who may be put at risk by the business. This means that where an employer tries to enforce a direction that may result in a breach of their WHS obligations, the employee may have a reasonable ground to object.
For example, an employee with a valid medical reason for not receiving the COVID-19 vaccine, such as being significantly immunocompromised, could be exempted from getting the vaccine due to the risk it could pose to their health and safety. For a full list of valid medical reasons, visit Services Australia.
If an employee does not have a legitimate medical reason/discrimination reason not to have the vaccine, employers may insist on employees receiving the vaccine on the basis that the employer has a legal obligation to ensure the workplace is safe for all employees.