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COVID-19 vaccinations – Q and As for WA workers

    COVID-19 vaccinations – Q&As for WA workers

    This information is for workers in Western Australia. It is general information only and not intended to be a substitute for legal advice.

    Please note that directions on COVID-19 vaccinations and the COVID-19 situation generally are rapidly evolving. While we will do our best to keep this page updated, some of the information below may be altered by changed circumstances.

    By using the information on this page, you agree to our full disclaimer at the bottom of the page.

    Click on any of the links below to skip to your question:

    What are the public health directions that require workers to be vaccinated against COVID-19 in WA?
    My employer is requiring me to be vaccinated against COVID-19 due to a public health direction. What happens if I refuse?
    My employer is requiring me to be vaccinated against COVID-19, but there is no public health direction which applies. Can they do this?
    What are my rights at work if I have a medical condition which means I cannot be vaccinated against COVID-19?
    My employer is treating me less favourably at work because I am not vaccinated against COVID-19. Is this unlawful discrimination?
    My employer has dismissed me because I did not get vaccinated against COVID-19. What can I do?
    I do not want to attend my workplace because a co-worker has not been vaccinated against COVID-19. What are my rights?
    Do I have a right to be paid for the time it takes me to get a COVID-19 vaccine if my employer has required me to be vaccinated?
    My employer is asking me if I am vaccinated against COVID-19. Do I have to give them my private medical information?
    Can my employer require me to provide my reasons or other medical evidence if I choose not to have a COVID-19 vaccine?
    I have followed my employer’s request / direction to be vaccinated and suffered an illness or injury due to a COVID-19 vaccination. What are my rights?

     

    Where can I get more information?
    Disclaimer

     

    What are the public health directions that require workers to be vaccinated against COVID-19 in WA?

    WA Government public health directions may require that workers in certain industries or workplaces receive a COVID-19 vaccine to attend work locations, unless an exemption applies.

    The Government’s vaccination plan identifies the following workers as either under a public health direction, or scheduled to be under a direction in future:

    • Workers in occupations deemed critical to the ongoing delivery of business and function of the community.
    • FIFO workers and resource sector workers.
    • Exposed port workers.
    • At risk cross-border transport workers.
    • Hotel quarantine workers.
    • Health care workers and health support workers.
    • Primary and community health workers.
    • Residential aged care workers.


    For more information on which WA workers are currently covered by a public health direction, please visit the WA Government website.

    For frequently asked questions about mandatory vaccination public health directions, please see this Department of Health publication.

    My employer is requiring me to be vaccinated against COVID-19 due to a public health direction. What happens if I refuse?

    Public health directions generally require workers to be vaccinated against COVID-19 to attend their workplace unless an exemption applies. Large fines may apply to workers and employers who fail to comply with a public health direction.

    From a workplace law perspective, if a public health direction requires you to be vaccinated to attend work, then it will usually be lawful and reasonable for your employer to require you to be vaccinated. However, employers should generally consult with workers affected to ensure they understand the requirement and any exemptions which may apply.

    If you are not appropriately vaccinated (or exempted) within the timeframe required under an applicable public health direction, then you may be unable to attend your workplace. If you are unable to attend your workplace, you may be unable to work, and your employer may consider you are unable to do your job. However, this would depend on the nature of your role and your employer’s business requirements.

    If you refuse to comply with your employer’s requirement to be vaccinated due to a public health direction (and you are not exempted), then your employer may have grounds to take disciplinary action against you (up to and including dismissal).

    While vaccination remains your personal choice, refusing to be vaccinated may have an impact on your job.

    You should consider getting legal advice on your circumstances before refusing to be vaccinated or if you are experiencing disciplinary action because you have refused to be vaccinated.

    You can make a request for free and confidential legal assistance from Circle Green Community Legal here.

    My employer is requiring me to be vaccinated against COVID-19, but there is no public health direction which applies. Can they do this?

    Your employer may be allowed to require you to be vaccinated against COVID-19 where no public health direction applies to you or your workplace if:

    • They are allowed to under the terms your award, enterprise agreement or employment contract; or
    • It is a lawful and reasonable direction.

    National system employees can find out if their employment is covered by an award from the Fair Work Ombudsman.

    State system employees can find out if their employment is covered by an award from Wageline.

    Even if there are no terms under and award, enterprise agreement or employment contract which expressly allow your employer to require you to be vaccinated against COVID-19, you may be required to follow your employer’s lawful and reasonable directions.

    Lawful and reasonable directions

    Employees have a general duty to follow the lawful and reasonable directions of their employers.

    A direction will be considered lawful where it is not prohibited by law. For example, your employer could not direct you to do something which would be in breach of a workplace law or instrument. However, a direction does not need to be enabled by law to be lawful.

    Whether a direction is reasonable will depend on the circumstances of the direction.

    Circumstances which may be considered in relation to a COVID-19 vaccination direction may include:

    • The nature of your work and workplace (including the risk to vulnerable individuals and communities).
    • The risk of COVID-19 transmission at the time of the direction.
    • Workplace health and safety obligations which apply to you and your employer.
    • Your individual circumstances (including any medical conditions which may affect your ability to be vaccinated).
    • Whether the employer consulted with you before making the direction.
    • Vaccine accessibility.

    While vaccination remains your personal choice, refusing to be vaccinated may impact on your job if your employer has directed you to be vaccinated.

    You should consider getting legal advice before refusing to be vaccinated or if you are facing disciplinary action because you have refused to be vaccinated.

    You can make a request for free and confidential legal assistance from Circle Green Community Legal here.

    What are my rights at work if I have a medical condition which means I cannot be vaccinated against COVID-19?

    If you have a medical condition which means you cannot be vaccinated against COVID-19, your rights will depend on whether a public health direction applies to you.

    If a public health direction applies

    Workers with certain medical conditions may be exempt from public health directions to receive a COVID-19 vaccination. If you are seeking an exemption on medical grounds, as a first step you should speak to your GP.

    For further information on the exemption process, please see the Department of Health (WA)’s mandatory vaccination FAQs.

    If you do not have an exemption but still believe that your medical condition prevents you from being vaccinated, you could make an argument that preventing you from working is discriminatory. However, if a public health direction applies, it is likely that the discriminatory conduct can be defended, or is not considered to be workplace discrimination, because it is outside the control of your employer and is authorised by law.

    If no public health direction applies

    Workers with medical conditions which mean they cannot be vaccinated against COVID-19 may be protected against unlawful disability discrimination by their employer.

    Your employer must not disadvantage or treat you less favourably in your employment because you have a disability (including a temporary or permanent medical condition which prevents you from being vaccinated).

    An employer who requires all workers to be vaccinated (without appropriate exceptions or adjustments for workers with a disability) may be indirectly discriminating against workers who have a disability which prevents vaccination.

    Indirect discrimination is where a requirement or practice may seem neutral, but disproportionately impacts a person or group because they have a protected characteristic, such as a disability or medical condition. Please note that vaccination status is not a protected characteristic. For further information on discrimination, please see our Discrimination fact sheet.

    However, there are some circumstances where indirect disability discrimination may be lawful, including:

    • If the discriminatory requirement or practice is reasonable in the circumstances. This is considered on a case-by-case basis.
    • If a disability means a worker is unable to fulfil the inherent requirements of their role on an ongoing or indefinite basis, even after reasonable adjustments are made to their role. This is also considered on a case-by-case basis.

    If you believe your employer may be unlawfully discriminating against you because you have a disability or medical condition, you should seek legal advice on your discrimination claim options.

    You can make a request for free and confidential legal assistance from Circle Green Community Legal here.

     

    My employer is treating me less favourably at work because I am not vaccinated against COVID-19. Is this unlawful discrimination?

    Workers are not protected against discrimination at work because of their vaccination status.

    However, if your employer treats you less favourably at work because you are not vaccinated, this may be indirect disability discrimination if you have a medical condition which prevents you from being vaccinated.

    Please see this section above for further information on your rights at work if you have a medical condition which means you cannot be vaccinated against COVID-19.

    My employer has dismissed me because I did not get vaccinated against COVID-19. What can I do?

    There may be legal claims available to employees who are dismissed in unfair circumstances or for discriminatory reasons. Your options depend on a range of factors including the nature of your employer, the nature of your work, your length of service and the circumstances of your dismissal.

    Further information on dismissal-based and discrimination-based claims can be found on our website here.

    If you have been dismissed, you should consider seeking legal advice as soon as possible. You may have as little as 21 days from a dismissal to make a claim.

    You can make a request for free and confidential legal assistance from Circle Green Community Legal here.

    I do not want to attend my workplace because a co-worker has not been vaccinated against COVID-19. What are my rights?

    Employees have a general duty to follow the lawful and reasonable directions of their employers.

    If your employer directs you to attend the workplace you may be required to comply with this direction if it is lawful and reasonable in the circumstances. Relevant circumstances may include:

      • Whether a public health direction applies to your workplace.
      • The terms of an applicable award, enterprise agreement or employment contract.
      • Your employer’s policy on workplace vaccination.
      • Your individual circumstances (including any medical condition which may make you vulnerable to COVID-19).
      • The circumstances of the co-worker who is not vaccinated (for example, they may have a medical condition which prevents them from being vaccinated).
      • The risk of COVID-19 transmission in the workplace at the time of the direction.
      • Workplace health and safety obligations.
      • The nature of your role and the practical availability of alternative working arrangements.

    Your right to raise workplace health and safety concerns is protected. However, refusing to comply with your employer’s direction to attend your workplace may impact on your employment.

    You should consider getting legal advice on your circumstances before refusing to attend your workplace or if you are facing disciplinary action because you have refused to attend your workplace.

    You can make a request for free and confidential legal assistance from Circle Green Community Legal here.

    Do I have a right to be paid for the time it takes me to get a COVID-19 vaccine if my employer has required me to be vaccinated?

    As a general rule, if your employer is requiring you to be vaccinated, then they should pay you for the time it takes you to get vaccinated or give you time off work without loss of pay if the appointment is during work hours. You should consider discussing your vaccination arrangements with your employer at the time of booking your COVID-19 vaccination.

    If your employer has not required you to be vaccinated, it might still be worth checking with your employer what arrangements can be made to support you to get vaccinated. You should also check any applicable award, agreement, contract, or workplace policies to see if there are any rules relating to reasonable work adjustments, such as leave arrangements, to support you getting vaccinated.

    My employer is asking me if I am vaccinated against COVID-19. Do I have to give them my private medical information?

    Employers who ask workers for information on their medical status may be collecting information which is sensitive information under privacy laws.

    Employers covered by privacy laws may only collect information on their workers’ vaccination status in limited circumstances, including:

    • If they are required or authorised to collect this information by law. Many public health directions require employers to collect information about their workers’ vaccination status.
      • Note: if a public health direction applies to you, you should check what the relevant direction says about your requirement to provide, or your employer’s right to collect information about your COVID-19 vaccination status.
    • If they collect this information with the employee’s consent and it is reasonably necessary for their activities or functions.

    For more information on your privacy rights at work, please see the Office of the Australia Information Commissioner website.

    If you have an exemption to an applicable public health direction, it will be reasonable in most circumstances to provide proof of your exemption status without having to disclose the reasons for the exemption.

    If an employer is not covered by privacy laws, or does not intend to ‘collect’ information on a worker’s vaccination status, they may ask for a worker’s vaccination status if this lawful and reasonable in the circumstances.

    Employees have a duty to follow the lawful and reasonable directions of their employers. Whether a direction is lawful and reasonable will depend on the specific circumstances of each case. Please see this section above for further information. For the request to be reasonable, your vaccination status should generally be relevant to your work. However, given the widespread nature and impact of COVID-19, most employers will have some argument to make that it is relevant, particularly when interstate and international travel is restored.

    You should consider getting legal advice before refusing a direction from your employer to provide information on your vaccination status, or if you are facing disciplinary action because of you have refused to provide information on your vaccination status.

    You can make a request for free and confidential legal assistance from Circle Green Community Legal here.

    Can my employer require me to provide my reasons or other medical evidence if I choose not to have a COVID-19 vaccine?

    Your reasons and medical evidence for not getting the COVID-19 vaccine may be sensitive information under privacy laws.

    If your employer is covered by privacy laws, they can usually only collect this information with your consent, and where it is reasonably necessary for their functions or activities.

    However, if there is a law, including a public health direction authorised by law, that requires your employer to collect your vaccination status information and reasons for non-vaccination, you may be required to provide your employer with your reasons and any medical evidence.

    If your employer is not covered by privacy laws, the requirement must be lawful and reasonable. Please see this section above for further information

    Vaccination status information should usually be limited to what is specified in the relevant law, or to what is reasonably necessary in the circumstances. If you have an exemption to an applicable public health direction, it will be reasonable in most circumstances to provide proof of your exemption status without having to disclose the reasons for the exemption.

    I have followed my employer’s request / direction to be vaccinated and suffered an illness or injury due to a COVID-19 vaccination. What are my rights?

    If you have suffered an illness or injury from a COVID-19 vaccination you received at your employer’s request, you may be able to take personal leave, make a workers’ compensation claim, and / or make a COVID-19 vaccine claim.

    Personal / sick leave

    If you are unable to work due to an illness or injury, you can access any paid personal / sick leave entitlements you may have. For information on who may be entitled to personal / sick leave, please see our Minimum Entitlements fact sheet.

    You should ensure you comply with any evidence requirements under your employment contract, or an applicable award or enterprise agreement.

    Workers’ compensation

    If you have suffered an illness or injury in the course of your work, including from a COVID-19 vaccination you received at your employer’s request, you may be able to make a workers’ compensation claim.

    For further information on workers’ compensation, please see WorkCover WA’s website.

    Circle Green Community Legal does not provide legal advice on workers’ compensation. If you are seeking legal advice on workers’ compensation, you can use the Law Society of WA’s Find a Lawyer webpage.

    COVID-19 vaccine claims scheme

    The Australian Government has introduced a scheme for individuals who experience adverse reaction(s) to an approved COVID-19 vaccine.

    From 6 September 2021, Australians who suffered injury and loss of income due to receiving a COVID-19 vaccine can register their intent to claim compensation. Once you register you will be told how you can submit a claim online when the application process opens.

    The scheme covers the costs of injuries of $5,000 and above. You may need to show evidence of lost wages and costs as well as medical evidence linking any reaction to the vaccine.

    For more information on the COVID-19 vaccine claims scheme, please visit the Australian Government website.

    Where can I get more information? 

    You can find more useful information on COVID-19 vaccinations for WA workers here:

    You can make a request for free and confidential legal assistance from Circle Green Community Legal here.

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