Vaccination Advice
NOTE: This advice was published before the issuing of directions by the Victorian Chief Health Officer requiring all school staff to receive vaccinations. See our statement following the issuing of these directions here.
The IEU will work constructively with employers in our sector to uphold the health and safety of our members and the community to minimise the risks associated with COVID-19 and, as always, advise and represent members about their rights in any dispute.
What about people who can’t safely be vaccinated?
Employers must make reasonable adjustments for members who are immunocompromised and/or who have other conditions which make receiving the vaccine dangerous to their health. In other employment settings, this has included working from home, required testing or wearing masks.
What about conscientious objectors?
If, as we anticipate, health orders or individual employers in our sector require employees to be vaccinated, our view is that legal challenges, other than on discrimination grounds, will not succeed.
Does this mean the Union won’t help me if I refuse to be vaccinated?
If you object to being vaccinated, the IEU will advise you and, if you have a case, represent you. All cases have to be dealt with on their facts. You should contact the IEU for advice if you think a requirement to be vaccinated would, in your particular circumstances, be discriminatory or compromise your welfare. Be aware though that, In the absence of any specific health or discrimination grounds, it is extremely unlikely you will have grounds to pursue a case.
Can my employer make employees take the vaccine?
No, but they may be able to refuse to let you work unless you are vaccinated. Employers have a duty of care to uphold the health and safety of all users of their premises and, to protect them, may issue any direction which is lawful and reasonable. If you are in regular contact with colleagues, students and others, there is a strong argument that a direction to be vaccinated will be considered reasonable and lawful.
Does an employer have to consult when implementing a vaccination policy?
Yes. Under occupational health and safety laws, employers also have to consult with employees, the Union and their health and safety representatives (HSRs) about measures to address risks. This includes any consideration of a new policy about coronavirus vaccinations.
Do employees have a right to be paid for the time to get vaccinated?
There is currently no absolute right to paid time off to get vaccinated, but many employers have agreed to it and we are continuing to campaign employers.
Can employees take paid time off if they feel unwell after being vaccinated?
Employees can use paid sick leave if they can't work because they’re unwell after being vaccinated. You may need to provide “evidence that will satisfy a reasonable person”.
Can requiring vaccination be discriminatory?
Various pieces of state and federal legislation make it unlawful to discriminate in employment on a number of grounds, including pregnancy or disability. If it is established that, because of your “attribute” it is unsafe to be vaccinated, you may have a discrimination claim. Whether a requirement by an employer that you be vaccinated will be considered ‘reasonable’ by a court will depend on the particular facts, including your particular circumstances and the evidence of the consequences of taking the vaccine.
What if I’m pregnant or planning pregnancy?
Women who are pregnant or planning pregnancy should consult their medical providers about coronavirus vaccination. On current advice it seems unlikely that challenging a requirement to be vaccinated on the grounds of pregnancy alone would succeed.
Can an employee refuse to attend work if a co-worker isn’t vaccinated?
Generally, no. Any refusal by an employee to come to work may be considered unlawful unless it is based on a “reasonable concern …. about an imminent risk to his/her health or safety”. “Imminent risk” is a pretty high bar: you would have to have firm grounds to believe that the unvaccinated employee was likely to be Covid-positive and, even then, you would have to comply with any reasonable request to perform other available work.
Can an employer direct me to attend a coronavirus test?
Yes, provided the employer gives you time to attend and to isolate until you get the result. The direction needs only to be “lawful and reasonable”. If there is no loss to you, then the requirement will be “lawful and reasonable”. However, if they do not give you time to do it, or expect to deduct leave for the isolation time, it may be “unreasonable”. One factor is that a direction to be tested is more likely to be lawful and reasonable if you show symptoms or work in a workplace like a school where you are in close proximity to students and colleagues.
Can an employer require me to show whether I have been vaccinated?
Yes. Employers are not entitled to any personal or medical information or records beyond that which is necessary to manage their workplace and manage identifiable risk. On the current laws, we believe that employers will be entitled to require employees to provide evidence of their vaccination status but not other medical records. While vaccination records are covered by Privacy and Medical Records legislation, these laws do not prohibit employers from requiring employees to provide their vaccination record. Employee records are essentially exempt from the Privacy Act and employers can require medical records where necessary “to prevent or lessen a serious threat to the …. life, health, safety or welfare” of any individual or the public. So again, the test is whether the requirement is “reasonable”. A court is highly likely to find it “reasonable” to require this information to manage the risk in schools.
IEU Position
The IEU Victoria Tasmania recognises that:
1. Given the transmission risks associated with school environment, the consequences of positive cases arising in schools, and the official safety and efficacy records of the available vaccines, it is highly likely that a required vaccination directive by an employer or by a Government Public Health Order would be upheld by the courts as lawful and reasonable. At this stage, the legal position has yet to be tested.
2. Ultimately the Union’s charter is to protect and advance the collective interests of its members. While expending enormous effort protecting individuals from injustice and unlawful treatment in the workplace, the Union must balance individual rights with the safety of all of its members in the workplace.
3. The State and Federal health authorities have determined that high levels of vaccination are the best protection for the community in order to minimise serious illness and death. Unvaccinated staff and students in schools present a serious ongoing risk to school communities.
4. The interests of all union members collectively, whether each one is vaccinated or not, is in having a work environment where students, staff and other members of the community are vaccinated to the extent possible.
5. Employers should, in the first place, encourage all staff and students to be vaccinated.
6. The Union’s priority remains urgent access to COVID-19 vaccinations for all school staff. School employers must support staff in accessing the vaccine through paid vaccination leave. We acknowledge that many employers in our sector have already implemented paid leave for vaccination, testing and isolation.
7. Any employer proposing to require vaccinations in their workplace must:
a. have exhausted efforts to encourage staff to be vaccinated,
b. engage in comprehensive and meaningful consultation with the union, HSRs and employees,
c. permit exceptions for genuine and compelling medical circumstances and where access to a recommended/appropriate vaccine is not reasonably available, and
d. ensure that there is no detrimental impact on members who possess a protected attribute under relevant discrimination legislation.
NOTE: This is an incomplete and developing area of law. This advice was last updated on 20 September 2021.