“Can we ask an employee to give us proof of vaccination?” and “What do we do when we ask an employee for proof of vaccination and they refuse?” must be up there as one of the most asked questions of 2021 and again in 2022.
The answer isn’t an easy to arrive at and requires employers to balance duties owed to employees and clients generally around their health and safety, their privacy and the ever-changing rules and directives issued by Governments and Health Authorities in response to Covid.
Two recent decisions of the Fair Work Commission (FWC) provide some guidance to employers on whether or not it is possible to collect proof of vaccination of employees. We break those down for you in this blog.
The Privacy considerations
Employers must comply with the Information Privacy Principles (IPPs) and Privacy Act 1988 (Privacy Act) when collecting personal and sensitive information about employees.
There will however be some limited circumstances where it is possible to compel employees to have the flu shot or the COVID vaccine.
For example:
A company can only collect personal information for a lawful purpose, which is directly related to the company’s function or activities and which is necessary for that purpose. If these requirements are met, then it is also necessary to have the employee’s consent.
The Privacy Act provides some exemptions to the above requirement including:
- a. where gathering personal information is required or authorised under a Commonwealth, State or Territory Act (which includes public health orders).
- b. where a ‘permitted general situation’ exists in relation to the collection of information (e.g., if the employer reasonably believes the collection is necessary to lessen or prevent a serious threat to the life, health or safety of a individual, or to public health or safety).
What has the FWC said?
Two Fair Work Commission decisions have considered the above recently and provide guidance on whether or not employers are able to request proof of vaccination.
CFMEU v BHP Coal Pty Ltd (21 January 2022)
BHP’s Qld mine site was not subject to any public health directive mandating vaccination of workers.
However, BHP implemented a mandatory vaccination policy which the FWC found (in December 2021) was not reasonable or lawful on the sole ground that BHP had failed to consult with employees before implementing the policy (on all other grounds, the FWC found it would have been lawful and reasonable to implement the mandatory vaccination policy).
BHP subsequently consulted with its employees on the impacts of the policy and the consequence of failing to comply with it and the parties applied to the FWC to resolve the dispute as to whether the requirement in the policy that employees submit proof of vaccination before attending the site was unlawful.
The CFMEU argued this was in breach of the Privacy Act and “consent” could not be provided in circumstances where handing of the data amounted to coercion as workers would have no option but to comply or lose their jobs.
The FWC held that anyone complying with the policy was giving consent (the issue of coercion was rejected by the FWC) and that the collection of the information was reasonably necessary to comply with Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) which imposes duties on coal mine workers to “work or carry out the worker’s or person’s activities in a way that does not expose the worker or person or someone else to an unacceptable level of risk”.
There had been a finding by FWC in an earlier decision that the spread of COVID19 was a hazard (ie a risk) which was a great and immediate risk to illness and safety of other workers. It followed that there was no breach of the Privacy Act as there was a need to collect the information and it was related to BHP’s functions.
Aleisha Shepheard v Calvary Healthcare T/A Little Company of Mary Health Care Limited (delivered 20 January 2022)
Where Ms. Shepheard’s employment as an aged care worker was terminated on the grounds that she did not comply with the requirement by her employer (Calvary) that she be vaccinated and submit proof of vaccination against COVID. Ms. Shepheard was unsuccessful in her unfair dismissal application as the Fair Work Commission held:
- The NSW public health directive that anyone working and entering an aged care facility be vaccinated permitted the implementation of a mandatory vaccination policy and, importantly, permitted or required the gathering of the proof of vaccination as it was a requirement of the public health directive for the employee to be vaccinated (although it didn’t go as far to say ‘proof has to be provided’). It was found there was no breach of the Privacy Act as a result.
- Calvary had taken reasonable steps to explain the effect of the public health directive and gave her an opportunity to comply or submit evidence in the appropriate form that she was exempted from having the vaccination.
- Even if the FWC was wrong on that view and Calvary had breached the Privacy Act, it would not outweigh all the other relevant considerations which included the public health order being binding and its effect was to prevent her from attending her workplace to perform her job. As she had no capacity to work, and there were no other positions to redeploy her to, there was no other option but to terminate the employment relationship.
Unfortunately, the FWC has not decided the issue of whether or not a ‘general situation’ exists so as to allow employers to collect the proof of vaccination certificates without consent. So, for now, consent will still be required to collect the proof of vaccination even where an employer relies on state or territory workplace health and safety legislation.
Yes, there is an alternative to ‘collecting’ the information. Instead of collecting the vaccination certificates, an alternative may be for employers to simply sight the certificate to be satisfied that the employee is vaccinated.
The Employee may still refuse to show you the certificate (rather than give you a copy of it) in which case the employer will need to consider whether or not the employee has the capacity to perform their role or other action can be taken on the basis of a failure to comply with a lawful and reasonable direction (on this issue, see our other article here).
Still unclear?
We don’t blame you! When in doubt, reach out and seek the appropriate advice for the circumstances of your particular business.