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Your questions about work and vaccinations, answered by ABHA DEVASIA

Canmye1nployerforcemetoget vaccinated?

The simple answerisno. Themorerealistic answer is, itdepends. Anen1ployercannot forceyoutohave aCOVID-19vaccine. The Federal Government'spolicyisthat vaccinesarevoluntaryand free, butthe Prime Ministerhasannounced thatit isup to employersto detern1ine whethervaccines shouldbe compulsory. So, dependingon youre1nploy1nentcircumstances, orwhere you live,youre1nployer1nay have the right toasktogetvaccinated.

They maybecon1pulsoryifyourstatehas publichealthorders inplace that required you tobe vaccinated ifyouare employed in an industrysuch as aged care, construction, orhealthcare.

() lfyouremployerdecideson amandatory vaccinationrequirementforitsemployees, it1nust talkto itsemployeesaboutitfirst, about theemployee'scircumstancesand the particularconditionsattheirworkplace. An employer's failuretodoso maybe abreach ofhealth and safetylaws.

Somecompanies like Qantasairlineshave a..___._ .....,_,_ said that theywillrequire employees to be vaccinated before theycancommencework.

Anti-discrinunationlawsinAustralia protectpeoplewith certain attributes from beingtreated lessfavourably, including health andphysicalattributes. Ifyouhave an existingillness,injuryorcondition thatpreventsyoufrom takingthevaccine, and the employernevertheless insists thatyoubevaccinated, thisconductmay bediscritninatory againstyou. Ifthis is thecase, the etnployermustprovide alternativeworkingarrangements toenable the employee tocontinueworkingsuch asworkingfromhomeormakeother adjustmentsattheworkplace.

Ifanemployeedecidesnottocomply with anemployer'sreasonableandlawful direction, itmayresultinjeopardisingtheir employment.You maywantto talkto a trusted colleague,yourunionoralawyer whenconsideringthis option toobtainsome furtheradvice.

WhataremyrightsifIneedtotake timeofftogetthejab?WhatifIfeel unwellafter?

Everyfull time andpart time employee inAustralia,otherthancasualworkers, areentitledtopersonalleave (upto 10 dayseveryyear) iftheyaresickorunwell. However,thisentitlementis notavailableto gogetthe vaccination.

Someworkplaces areoffering2 hours paidleavetogetthevaccination. Other employersareofferingdifferent start and finish times to facilitateyoutaking time togetthe vaccine. Youshould speakwith youremployerabout whatentitlements are available toyou. ffIhaveamedicalcontraindicationto takethevaccine,whatdoIhavetotell myemployer?Towhatdegreemustmy employerbekeptin theloopregardinga personalsituation?

Ifyou have already received the vaccination, checkwithyouremployerifyou areentitled to have leave for the relevant period.

Ifyoufeel unwell afterwardsand ca11not attend work,youareentitled to take aday offaspersonal leave orsickday. lfyou requit-e a n1edicalcertificate then ren1ember thatyou canaskapharn,acistto issueyou withone, although there maybe acharge forone. lfyouhave run outofpersonal leave, then speaktoyouremployer asthey maymake specialarrangementsfor extra sickleaveforaftereffectsofthe vaccine.

Anymedicalinformationaboutyouand the medicalreasons astowhyyou cannottake the vaccine aregenerallyconsidered to be sensitive informationandprotectedunder thePrivacyAct 1998.

Medical informationisprivate informationand doesnot needto begiven toanemployer,unlessyouchooseto do so. Employers arenot sitnplyentitled todemandthatinformationfromyou, norcantheypressureyoutoprovidethe information. Theymustaskyourconsent. Theymust tellyou thepurpose ofcollecting the information,what tnayhappenifyou do notprovidethe infonnation, underwhat authoritytheyare seekingthe information, and showhowthatmaterialwill beretained bythee1nployer. Allthesefactorsare necessarytoensureyouareproviding informed consentabout thewhetheryou should hand overtheinformation.

Insomecases,yourcontractof employment orthe enterprise agree1nent atyourworkplace 111ayhavecertain require111entsthatpernlitthe employerto askyou forthlsinforn1ation. You should check thesebeforeprovidingany personal details tothe en,ployer.

Ifthere arepublichealthorders inplace thatrequiree1nployees tobevaccinated beforethey canwork, en1ployerscan ask youforevidence astowhyyou have an exen1ption. A 1nedical certificate that states thereasonfor the medicalcontraindication isusuallysufficient. The medical certificate doesnotneed togointo lotsofdetaiJ.

Fu1·therinfonnation about the rightsto privacyand your1nedical informationcan befound at the Officeofthe Australian lnforn1ation Commissioner (www.oaic. gov.au.) You are also entitledtoraise a complaintwiththisbodyifyouare concerned aboutthe mishandlingofyour private information.

Can I refusetoworkwithunvaccinated people?

It is unlikelythat aworkercan refuseto attend the workplace because aco-worker is unvaccinated unless thevaccination is mandatory underlaw, such as in a public health order.

However,youremployerhas a dutyunder work health andsafety laws in each state to elin1inate the risk to the health and safety ofworkers theyen1ploy, aspracticallyas possible.This 1neans that employersmust ensurethatthereare sufficientmeasuresin place at the workplacekeepyou andother workers safe.

Ifyoufeel unsafe at work,you have the right toceasework foryourown health and safetyand thoseofotherworkers.This is an entitlementunderthe workplace health and safety acts in eachstate.To do this, the workermustitnmediatelyinfonntheir supervisor thatthey have decidedto doso and be available todo anotheralternative taskthey aretrainedandabletodo. Ane1nployercannotdiscriminateor take negative actionagainstyou for raising workhealth and safetyconcerns inyour workplace. Although thisisthe law, it maysometimes be hard totake that stand, particularlyifyou workin aplacewhereyou mayloseyourjobfor raisinga complaint.

WhatifIamvaccinatedbutlivewith unvaccinatedpeople?Willthataffectmy position?

Evenifyouare vaccinated,youcan transmit thevirusto othersatyourworkplace if yourhouse mates are unvaccinatedand infectious. Whetheryoudisclosethis informationwill dependon thelegal requiren1entsthat 1nayapplytoyour employment and how much youare required todisclose. Ifyou areengaged in thehealthcare sector,yourrequirementto disclosethismaybea part ofyourduties to the e111ployer to control and managethe riskofinfection. Ifyou areemployedin warehousingor the ITsector, thjs maynot be required.

If I amwaitingforavaccinethathasn't beenintroducedinAustralia,whatare myoptions?

All thevaccinationshavethesame level ofapproval from theTherapeuticGoods Administration(TOA),thebodyresponsible forthe approvalof1nedicinesinAustralia. Ifyou1·en1ployerrequiresallemployeesto bevaccinated byaparticula1·date,youmay need1nedicalevidenceastowhyavaccine otherthanthosecurrentlyavailableisthe betteroptionforyou. Wherethereare nocompulsoryvaccinations,youshould approachtheen1ployerandexplainyour preferenceandwhyyou arechoosingtowait.

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Will I beaskedif1'01vaccinated?Can I ask ifemployeesatthecompanyare vaccinated?

Dependingon the type ofjob thatyouare applyingfor, anemployermayhavetheright to askwhetheryouhavebeenvaccinated for example,a sectorthat requiresvaccinations suchas airlines. Ifyou are asked the question,you have the rightto askwhythey need toknowthis information.

Forthesereasons, thecompanyn1ayalso not tellyou ifspecificpeople workingwith youhavebeenvaccinated,butcan tellyou ifthere is apolicyat theworkplace that all employees arevaccinated.

Will I beunemployedifI can'tget thevaccineforhealthreasonsand vaccinationismandatoryinall professions?

There isn't ayes or no answer to this question. Ifyou have a health condition that does not permityou to have the vaccination,you maybe protected by anti-discrimination laws. Refusingyou the opportunityto perforn1 a role or be considered foremploymentmaybe grounds fordiscrimination againstyou. In these circumstances, you should eitherapproachyour union orspeak tosolicitorstoprovideyouwithmore specific advice.

Whatconstitutesareligiousobjectionto thevaccineandhowcanthisexemption beproven?

Thereareveryliinitedgrounds onwhichto do thisandwouldrequire, atthe veryleast, specificrestrictions and official statements issuedbyreligiousleaders thatthe vaccine is prohibited in theirreligion.

Further,the religionwill alsohave to be a registered establishedreHgionto warrant thlsconsideration. Australian courts have traditionally beenreluctantto 1nakefindings such as these and itwouldbedeterminedon a case-by-case basis.

Protectionagainstdiscrimination on the basis ofreligiousgroundsare available inthe ACT, NT, Queensland,Tasmania, Victoria, and WesternAustralia. The circumstancesofeachcasewiUdetennine whetherthereisanyprotectionavailable in thecourts.

Whatagenciesandserviceorganisations areavailableforfurtherinformation aboutthesematters?

• The FairWork01nbudsmanisthe governmentagencyresponsiblefor advice on andenforcementofworkplace laws inAustralia. Theiradvice on employment rights and COVID-19 can befoundon theirwebsite. You can makecomplaints aboutyourworkplaces breachingworkplace laws atthisofnce.

• SafeworkAustralia is thegovern1nent bodyresponsiblefordevelopingnational policyon worker's health and safetyand worker's compensation. Theirwebsite Listsadvice and guidelines on COVJ.0-19 and the safeworkingconditions for workingwith COVID-19. Further informationonthe national rolloutof thevaccine and howit interactswith worker's health and safetycan also be accessed at this site.

• TheAustralian Human Rights Commission is the government body that investigates complaintsabout discrimination and human rights breaches. Check theirwebsite for information aboutthe COVID-19 vaccine and discrimination law.

• The Office ofthe Australian Information Commissioner is thegovernmentagency established toregulate privacy rightsof allAustralians. Information aboutyour rightstoprivacyand the COVID-19 vaccinescan be found at theirwebsite.

• The Departn1entofHealthdevelops and delivers the policies on health in Australia. Visit theirwebsite forguidance ontheCOVID-19 vaccines.

• Unions are afee-based membershlp organisation foremployees andcover allindusu·iesincludingbanking, IT, mechanicaltrades, and nursing.They workto representyou and provide assistance withwagesand entitlements, unfairtreatmentatwork, orwork-related injuriesorillness. Everyworker in Australia hasa right tojoinaunion. As part ofthe membership, theycan offer youlegaladvice and assistanceforfree. You canfindout more aboutUnions at thewebsite oftheAustralian Councilof Trade Unions.

• Visitourwebsitewww.indianlink.com. au togetfulldetails ofthewebsites mentionedhere.

Theinformationprovidedhereisforgeneral guidance onlyandshouldnotbeconsidered tobelegaladvice.