COVID-19 vaccinations and employment - private sector

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Employee / workerEmployer

This information is relevant to employers and employees in the WA state industrial relations system – sole traders, unincorporated partnerships, unincorporated trusts and some incorporated or not for profit organisations. Find out more on the Guide to who is in the WA state system page. Employers and employees under the national industrial relations system should instead refer to the Fair Work Ombudsman.

This page provides information for private sector employers and employees on employment obligations and entitlements relevant to a range of situations as outlined below.

Vaccination requirements in public health directions

Public health directions have been issued which prevent employees who have not been vaccinated against
COVID-19 from accessing certain kinds of workplaces.

You can find the public health directions specifying mandatory COVID-19 vaccination requirements on the WA Government website.

You can also find information about the COVID-19 coronavirus and vaccinations on the WA Department of Health website and the Federal Department of Health website.

Good employment practice guide for mandatory COVID-19 vaccination policy is available on the Small Business Development Corporation’s website.

Can a private sector employer require an employee to be vaccinated against COVID-19?

The WA Government has issued public health directions which prevent employees in certain industries who have not been vaccinated from accessing their workplace. Where a health direction applies to an employee’s workplace, the employee must not enter this workplace in their capacity as an employee if they are not vaccinated, unless they are an exempt person.

If there is not a public health direction in place for a particular workplace, then whether an employer can require an employee to be vaccinated against COVID-19 in order to access that workplace is likely to depend on the specific situation. An employer can give an employee a lawful and reasonable direction. Whether an employer’s direction requiring an employee to be vaccinated against COVID-19 is considered lawful and reasonable will depend on the circumstances. Employers are encouraged to seek independent legal advice on their specific situations.

There are a range of factors that may be considered in determining whether a direction to an employee is reasonable, including:

  • any public health orders or directions of the State or Federal Government which are in place at a particular time;
  • whether a law, a WA award or registered agreement or an employment contract allows an employer to require an employee to be vaccinated against COVID-19;
  • an employer’s duties under workplace health and safety laws;
  • the type of work being performed by an employee;
  • the nature of the workplace; and
  • an employee’s specific circumstances, including whether an employee has a legitimate reason for not being vaccinated (for example, a medical reason).

Where an employer decides to introduce changes that are likely to have significant effects on employees, it is important that the employer consults their employees.

Good employment practice guide for mandatory COVID-19 vaccination policy is available on the Small Business Development Corporation’s website.

Can a private sector employer require a prospective employee to be vaccinated before starting work?

Where a public health direction applies to a workplace, employees who commence employment after a health direction takes effect will need to provide evidence of being vaccinated against COVID-19, or evidence of having an approved exemption, before commencing at the workplace.

In advertising vacant positions, an employer can advertise that a mandatory COVID-19 vaccination is a requirement in that workplace. Further, an employer may require prospective employees to be vaccinated against COVID-19 as a condition of employment. However, they should consider their legal obligations and responsibilities before doing so, such as under discrimination laws which prohibit discrimination against employees based on a range of factors such as disability.

Good employment practice guide for mandatory COVID-19 vaccination policy is available on the Small Business Development Corporation’s website.

What happens if an employee does not comply with vaccination requirements in an applicable public health direction?

If an employee’s workplace is covered by a public health direction requiring vaccination and the employee is not an exempt person and has not provided evidence of their vaccination status, the employee will be unable to enter the workplace.

Are leave entitlements available if an employee cannot work because they do not comply with vaccination requirements in a public health direction?

An employee may request to take annual leave or long service leave in accordance with any applicable WA award, registered agreement or contract of employment and state employment laws. The annual leave and long service leave pages have more information about those entitlements.

An employee could also request a period of leave without pay which the employer could consider granting if it is practicable and operationally convenient.

Further information is available in the Good employment practice guide for mandatory COVID-19 vaccination policy on the Small Business Development Corporation’s website.

Employers are encouraged to seek independent legal advice on their specific situations. 

Does an employee's non-compliance with vaccination requirements in a public health direction justify termination of employment?

Whether an employee’s failure to comply with mandatory vaccination requirements in a public health direction constitutes a valid or lawful reason for dismissal will depend on the circumstances and must be assessed on a case by case basis. 

Employers and employees are encouraged to seek independent legal advice on their specific situations.

The Dismissal – General Information page has information regarding unfair dismissal, unlawful termination and termination on grounds of serious misconduct.

When a decision has been made to dismiss an employee, an employer must provide any required period of notice to the employee. 

An employer may require an employee to work the notice period.  In this circumstance, if an employee resigns during the notice period, or does not work some or all of their notice period, they are entitled to payment only for the part of the notice period that was actually worked. 

Alternatively, an employer may provide the employee with pay in lieu of notice.

The Dismissal notice periods page has more information about notice periods. 

Further information is available in the Good employment practice guide for mandatory COVID-19 vaccination policy on the Small Business Development Corporation’s website.

What leave entitlements apply for attending a vaccination appointment?

There is no specific leave entitlement for employees attending vaccination appointments during work hours.

An employee seeking to access a COVID-19 vaccination during work hours may seek approval from their employer for reasonable time off to obtain a vaccination. An employer may wish to support their employees in getting vaccinated by allowing their employees to take paid or unpaid leave, starting work later or finishing earlier if it is practicable, or providing paid time off work to get vaccinated.

Good employment practice guide for mandatory COVID-19 vaccination policy is available on the Small Business Development Corporation’s website.

Further information

For state system private sector employers and employees, refer to the Employment impacted by the COVID-19 coronavirus page.

Visit the WA Government website for information on the COVID-19 coronavirus, including the latest health advice.

Department of Health WA

Australian Department of Health

Workplace health and safety

Information on the responsibilities and entitlements under the Occupational Safety and Health Act on COVID-19 Coronavirus is available on Worksafe's website.

Small business assistance

Small businesses who are seeking information on available assistance should contact Small Business Development Corporation on 13 31 40.

 

 

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