COVID-19 Employees and Vaccinations Guide 2021 (NSW)
The NSW Government has released new rules about employees and vaccinations. Read on to discover the latest COVID-19 vaccine requirements.
The NSW Government has released new rules relating to employees and vaccinations. It is important to stay informed regarding these continually changing rules in order to protect yourself, your employees and your business. For mandatory vaccination information regarding other Australian States, see “Employees and Vaccinations (Rest of AUS)“.
Can I make my employees get vaccinated?
With many government announcements being made surrounding employees and vaccinations, it can be difficult to stay on top of the latest regulations and rules. Presently, it is likely that most employers may not be able to make their employees receive a vaccination. This is because the Australian Governments policy is that the COVID-19 vaccination is voluntary. However, there are specific occasions in which an employer can mandate their employees to receive a vaccination. Therefore, each occasion will be explained in more detail below.
(1) Mandating the vaccine through Legislation or Public Health Orders
The NSW Government has released public health orders to direct employees in ‘high-risk’ workplaces to receive a COVID-19 vaccine. The following orders are currently in place:
- NSW Airport and Quarantine Vaccination Program (commenced 28 June 2021)
Under the NSW Airport and Quarantine Vaccination Program, the following employees must receive a vaccination:
- Quarantine workers,
- Transportation workers,
- Airport workers.
If you are an employer of one of the above mentioned services, it is your responsibility to ensure that your employees receive their first dose of a COVID-19 vaccine.
Who are Quarantine Workers?
- Persons providing security services to a quarantine facility,
- Hotel staff in a quarantine facility, including: cleaners, maintenance, linen contractual workers, kitchen staff, guest services, front of house staff,
- NSW Police Officers,
- Healthcare staff providing medical treatment or care to relevant persons, including health staff conducting infection prevention and control audits,
- Australian Defence Force members providing services to a quarantine facility,
- Persons who conduct health screening and courier services in or for a quarantine facility,
- Persons conducting audits of security services for a quarantine facility.
Who are Transportation Workers?
All employees providing transport services:
- To relevant persons to and from the airport and a quarantine facility,
- From an airport to a declared flight crew members residence,
- To a relevant persons from an airport, other than an employee providing suitable transport to an interstate flight crew member.
Who are Airport Workers?
- Persons conducting health screening and swabbing to relevant persons at an airport – this includes health care workers and administrative support,
- Health courier services supporting health screening and swabbing to relevant persons,
- Australia Defence Force members who provide baggage handling services to relevant persons,
- Persons conducting passport and border control, biosecurity and law enforcement to relevant persons,
- Persons providing international aeromedical retrieval air transport services to relevant persons,
- Flight crew who are relevant persons (not including flight crew who do not normally reside in NSW),
- Freight staff, ground handlers, cleaners, customer service agents, ramp workers, baggage handlers, engineers and security staff providing their services in an environment where relevant persons are, or have been,
- Persons providing cleaning and vehicle preparation services for vehicles used to transport relevant persons.
Note: All references to ‘relevant persons‘ means any person who arrives in NSW by aircraft from an overseas destination in the last 14 days or is in an aircraft with a passenger or crew member who has been overseas in the last 14 days.
Australian Government (including NSW)
On 28 June 2021, the National Cabinet agreed to mandate that “at least the first dose of a COVID-19 vaccine be administered by mid-September 2021 for all residential aged care workers“. This public health direction applies to all aged care facilities in all Australian States and Territories.
To view a full copy of the National Cabinet media release mandating the vaccine for all aged care workers, see National Cabinet Statement.
(2) Mandating the vaccine through agreements or contracts:
Some enterprise agreements or employment contracts may include a term that requires their employees to receive vaccinations in general. However, this does not mean that the term relates to all vaccinations, including a COVID-19 vaccine. For instance, an employer cannot rely upon the terms in an enterprise agreement surrounding employees and the flu vaccination to mandate a COVID-19 vaccine.
If the term in the agreement or contract applies to coronavirus, the term must be non-discriminatory and reasonable. However, determining whether a term breaches anti-discriminatory laws can be a lengthy task. It is always best to speak to one of our solicitors if this is something you are considering.
(3) Mandating the vaccine through ‘Lawful and Reasonable’ direction
An employer may be able to direct employees to receive a COVID-19 vaccine if that direction is lawful and reasonable. However, in order to ensure that the employers direction is lawful and reasonable, the following grounds must be meet:
A direction by an employer will be a lawful direction if:
- It complies with any contract, award or agreement, Commonwealth, State or Territory law. For instance, an employers direction that all hotel staff in a quarantine facility receive a COVID-19 vaccine is a ‘lawful’ direction, as NSW State law requires it.
A direction by an employer will be a reasonable direction where:
- The employee interacts with people with an elevated risk of infection, e.g. border control workers or quarantine transportation workers,
- Employees have close contact with people most vulnerable to serious health impacts from the infection, e.g. aged care workers.
Do I need to offer special leave arrangements for side effects of the vaccine?
Employers may be required to pay their employees sick leave if they feel unwell after receiving a COVID-19 vaccine and thus cannot work. Employees cannot take sick leave just because they choose to take a COVID-19 vaccination. Sick leave is only available when an employee is unfit for work because of illness or injury.
If your employee is a full-time or part-time employee and they cannot work as they feel unwell, the employee must:
- Give notice they will be taking sick leave as soon as practicably possible,
- Give a reasonable time frame as to how long they cannot attend work,
- Provide evidence that they are not fit to work, if asked by their employer.
Alternatively, if your employee has no remaining sick leave, you may decide to allow your employee to access other leave entitlements, like annual leave or unpaid leave. Employers should always check their obligations under any awards, enterprise agreements, employment contracts or leave policies that could provide additional rules relating to an employee’s leave entitlements.
However, if your employee is a casual employee, they are not entitled to paid sick leave under the National Employment Standards.
In generally, a COVID-19 vaccination is voluntary. However, the COVID-19 vaccine is mandatory for NSW employees working in a ‘high risk’ environment, including quarantine workers, transport workers, airport works, and residential aged care workers. If an employee feels too unwell to work after receiving a COVID-19 vaccine, sick leave should be available. Alternatively, the employer and employee may agree to access other leave entitlements, such as annual leave or unpaid leave. The law relating to employees and vaccinations will continue to develop over the coming weeks. Stay safe everyone!
Mai is a Legal Tech Intern at Lawpath, working as part of the Content Team. She is in her final year of a Bachelor of Laws degree at the University of Wollongong. She is interested in Business and Employment Law.