The first question is whether an employer is entitled to demand an employee to tell them whether they have been vaccinated. This leads to the question of whether the staff member can be terminated if they refuse to give this information or if they refuse to be vaccinated.

Can the boss ask an employee if they have been vaccinated?

Employers have the legal right to give reasonable and lawful directions to their staff. So, it comes down to whether instructing the staff to provide information about their covid vaccination status is reasonable and lawful. This depends on the context and, in particular, the connection between staff members being vaccinated and the performance of their job.

We have a client with a manufacturing facility, where over 200 staff work closely together. In those circumstances, knowing who has been vaccinated will influence the decisions as to who should work in close proximity to others. Accordingly, we advise the client that it is both reasonable and lawful to require the staff to complete a form as to their vaccination status, to provide proof of vaccination and for our client to retain records of their vaccination.

Knowing the employees’ vaccine status may be far less important in other working environments. Many employees now work remotely. If their employment does not require them to have any substantial human contact, it would clearly be unreasonable to demand that they reveal their vaccine status.

The effect of simply asking the question may encourage staff to become vaccinated. However, this is not a legitimate reason for an employer to require the information about their employees’ vaccinations.

The employees’ right to privacy

The privacy laws require employers to safeguard confidential information of their employees, not to reveal it to any 3rd party, and to use it only for the purposes of conducting the business. Of course, that same requirement already applies to other personal information of employees held by their employer, such as their full names, dates of birth and addresses. Accordingly, the information as to the vaccination status of employees must be subject to the same safeguards of confidentiality as the other personal information of employees.

Can an employee be sacked for not disclosing their vaccine status?

Again, it comes down to whether the request for the vaccine information was reasonable and lawful. If the employer has a reasonable justification for requesting information for the purposes of conducting the business, and the employee refuses to give that information, then the employee can be warned that the refusal may lead to their termination. If they then still refuse to provide information, they can be terminated.

Can an employee be sacked for not being vaccinated?

While someone is waiting for an appointment for vaccination, and or waiting the required period between the first and second injections, it would obviously be unreasonable and unlawful to terminate an employee for not being vaccinated.

However, once we reach the stage where everybody has had a reasonable opportunity to be fully vaccinated, but an employee refuses, the employer may terminate them if vaccination is a reasonable requirement for their employment. Like any termination for misconduct, the employer must first warn the employee, give them a chance to state their position, and give them an opportunity to rectify the situation. However, if these steps do not resolve the issue, then the employee would face termination for misconduct.

There are a number of relevant cases currently before the court and tribunals, and the question has not yet been answered by the courts. Accordingly, the opinions expressed above are those of Somerville Legal and may not be shared by other lawyers. This article on our website will be updated in the light of any forthcoming court judgments.

For further information please contact Tim Somerville on (02) 9923 2321 or enquiries@somervillelegal.com.au.