As the COVID-19 vaccination rollout continues throughout Australia – with the aim of offering every adult a vaccination by the end of October. There are many unanswered questions from employers around how the vaccine sits with the workplace health and safety (WH&S) obligations. To fill this knowledge vacuum, in February Safe Work Australia published some initial guidance as follows:
How the vaccine works
For background, COVID-19 vaccines will help protect people by either preventing or reducing symptoms of COVID-19 in the person who has received the vaccine.
At this early stage it is too early to tell if the COVID-19 vaccines will stop a vaccinated person from being infected with the virus. This means that a vaccinated person may unknowingly carry and spread the virus to others around them, including workers and others in their workplace. For this reason, employers must continue to apply all reasonably practicable control measures even where everybody in your workplace is vaccinated.
Do I have to ensure my workers are vaccinated under WH&S laws?
Under WHS laws, you have a duty to eliminate or if not possible, minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace. You may not be able to completely eliminate the risk of workers being exposed to COVID-19 while carrying out work. However, you must do all that is reasonably practicable to minimise this risk and vaccination should be considered as one way to do so in the context of a range of COVID-19 control measures.
To reduce risks such as COVID-19 in the workplace, you should:
● undertake a risk assessment for your business
● consider the available control measures and how they will help manage the risks of COVID-19, including any available vaccines, taking into account available evidence.
● consult with workers and health and safety representatives about COVID-19 and relevant control measures, including the COVID-19 vaccines
● determine what control measures are reasonably practicable for you to implement in your workplace
While the Australian Government is not making vaccination mandatory, states and territories may do so for some industries or workers (for example, those who work in aged care) through public health orders. More information is available on the public health orders page.
Can I require customers and visitors to the workplace to prove they have been vaccinated as a condition of entry?
It is unlikely that WHS laws require you to ask customers and visitors for proof of vaccination. However, you might still want to require this as a condition of entry to your premises. Before you take action to impose this kind of requirement, you should seek advice as there may be privacy and discrimination issues that apply.
Can my workers refuse to come to work because another worker isn’t vaccinated?
Under WHS laws, a worker can only cease or refuse to carry out work, if the worker has a reasonable concern, that to carry out the work would expose the worker to a serious risk to the worker’s health or safety from an immediate or imminent exposure to a hazard. In most circumstances, a worker will not be able to rely on the WHS laws to cease work simply because another worker at the workplace isn’t vaccinated, however this will depend on the circumstances.
There is currently insufficient evidence about the impact of COVID-19 vaccines on
the transmission of COVID-19. Therefore, there is no reason why workers who are currently attending workplaces with other people should stop doing so because of the vaccine rollout. For vulnerable workers, you should continue to implement other working arrangements where you reasonably can, such as working from home.