Can an employer in NSW:
- Legally obtain employee’s covid vaccination status without employee’s consent?
No
- Request employee to provide one. On grounds of what law?
Anyone can ask anyone anything, however, I presume you are asking when they can demand to see your certificate.
Employers have a general right to issue reasonable and lawful instructions to employees and failing to comply is misconduct. The direction to show a certificate is certainly legal and almost certainly reasonable given the employer’s obligations under Work Health and Safety law.
More directly, all businesses in NSW are required to have and update a COVID-Safe Plan. It is perfectly reasonable for them to require employees to divulge their vaccination status. In certain workplaces it may be appropriate for them to mandate vaccinations.
Also, there are various Public Health Orders under the Public Health Act 2010 that mandate vaccinations for health care workers, aged care workers (and visitors), child care and care workers. An employer has a legal obligation to check this.
In addition, there are requirements under the Public Health (COVID-19 General) Order 2021 under the Public Health Act 2010 requiring some business to check in all visitors to the premises (including employees) including checking their vaccination status. This is what a status check looks like. There are 45 types of premises and events in this category listed in Schedule 5.
- Terminate employment should employee decide not provide this information or openly declare that they do not want to get vaccinated? What is the law allowing to discriminate the employee on their vaccination status? This is a typical office environment, nothing to do with health care or public sector.
Yes.
More specifically, refusing a lawful and reasonable instruction is misconduct and, if persistent, may warrant dismissal.
If they refuse vaccination in a workplace where vaccines are legally mandated or where the employer has required them (and the requirement is reasonable to protect the legitimate interests of the business), they are similarly disobeying a lawful and reasonable direction.
Case law in industries where flu vaccines are mandated is clear - refusal to have them is a legitimate reason for dismissal. There is no doubt this will be good law for COVID vaccines.
Decisions on whether an employer not in a mandated industries can make vaccines mandatory have only been made at the Tribunal level so no precedents have been set but the general thrust of these decisions is if it is a reasonable precaution to protect other employees or the public (e.g. if social distancing and PPE is impractical or not likely to be effective): yes. So far, no employee has been successful in an unfair dismissal claim.
Currently, there are two public health orders mandating vaccinations for workers in certain industries:
Each of these orders requires workers to provide their vaccination status to their employers if requested to do so.
Other employers may institute vaccination mandates in their workplaces on their own. While I'm not aware that this is fully tested, they may rely on their power under employment law (including any employment agreement in place) to issue lawful and reasonable directions to their employees, having regard to their work health and safety obligations.
The Fair Work Ombudsman has a dedicated page explaining vaccine mandates, including what could happen if an employee refuses to comply.
