Can your employer sack you for refusing the jab?

By Maja Garaca Djurdjevic

June 11 2021
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While employers cannot force an employee to get the jab, they can implement a compulsory vaccination program.

As it currently stands, employers cannot pressure their employees to receive the COVID-19 vaccine, but they can opt to implement a compulsory vaccination program, which could exert unduly pressure on individuals who chose to forego the jab.

“The decision to introduce a COVID-19 vaccination program at the workplace should be based upon a valid risk assessment that is undertaken in consultation with employees,” Larry Drewsen, health and safety manager at Employsure, explained.

“Where the outcome of the risk assessment indicates the vaccination is the only reasonable control measure, employers have a duty of care to ensure the health and safety of all employees and others who visit the workplace.”

It is under these circumstances that employers are being advised to introduce a compulsory program. And, although they cannot legally enforce it, employers have the right to “consult” with employees who are unable, or don’t want the COVID-19 vaccination, and discuss alternative measures.

While workers do not have to tell their employer if they have been vaccinated, or even give a reason behind it, employers can still ask the question.

Moreover, employers are being advised by workplace relations adviser Employsure to monitor which employees have been vaccinated by using employee management software.

“Employers have an obligation to take reasonably practicable steps to ensure a safe workplace, and vaccinations are a critical component if we are to successfully come out of this pandemic. While vaccinations form part of a business’s methods of controlling the risk of infection, a business must therefore have other plans in place if they have workers who refuse to be vaccinated.

“It is up to employers to encourage their workers to get vaccinated, provide them with relevant government health information, and allow workers who want the jab during work hours the right to do so without loss of pay,” Mr Drewsen said.

The Fair Work Ombudsman provides similar advice, noting that in order to refuse the jab, employees have to have a “legitimate reason”, for example, a medical reason.

Employers are, however, being cautioned to consider their obligations and responsibilities under anti-discrimination laws, which generally prohibit discrimination against employees in the workplace based on protected characteristics, such as disability, pregnancy or religious beliefs.

The FWO further explained that if an employee refuses a direction to be vaccinated, it’s unlikely that their employer can stand them down.

In fact, as the law prescribes, the employer can only take disciplinary action, including termination, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of a specific law, or a clear and repeated lawful and reasonable direction requiring vaccination.

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About the author

Maja Garaca Djurdjevic

Maja Garaca Djurdjevic is the editor of nestegg and Smart Property Investment. Email Maja at [email protected]

About the author

Maja Garaca Djurdjevic

Maja Garaca Djurdjevic is the editor of nestegg and Smart Property Investment. Email Maja at [email protected]

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