‘Are you vaccinated?’ A simple question with a not-so-simple answer

James Coleman 29 October 2021 12
Nurse preparing COVID-19 Pfizer vaccine

Nurse preparing COVID-19 Pfizer vaccine at Garran Surge Centre, ACT Health. Photo: Michelle Kroll.

“Are you vaccinated?”

“Are you double-dosed?”

“Have you had your jabs yet?”

Enquiring about a person’s COVID-19 vaccination status is almost everyday conversation nowadays, not far behind, “How are you?” But depending on the circumstance, the answer could be far more than just a simple yes or no, especially for business owners.

Meyer Vandenberg lawyer Alison Spivey says that information regarding a person’s vaccination status is likely to be sensitive, and any request for this information must be handled in accordance with existing privacy legislation.

“What, if any, laws will apply when one person asks another person about their vaccination status will largely depend on the nature of the relationship between the person asking the question and the person being asked about their vaccination status,” she says.

For instance, this doesn’t make it a potential crime for a friend or family member to ask.

But in the ACT, if an employer is, for example, asking the question of an employee or a visitor to the premises – including a client or customer – that’s when privacy legislation may come into play, specifically the Privacy Act 1988. And this situation is not far away.

The ACT Government has ruled out so-called ‘vaccine passports’ because our world-leading rates of vaccination make this kind of incentive unnecessary.


READ MORE: Would requiring proof of vaccination make Canberrans more confident as COVID-19 restrictions ease?


Across the border in NSW, the roadmap out of lockdown includes different restrictions for the vaccinated and unvaccinated until 1 December.

Ms Spivey said there are situations where an employer can require an employee to disclose their vaccination status, including when the disclosure is required or authorised by an Australian law. This includes disclosures required or authorised under public health orders.

“Whether this requirement can be imposed by an employer would need to be determined on a case-by-case basis,” she said.

Having legally obtained information on a person’s vaccination status doesn’t mean the business is out of the woods yet. Handling this sort of information comes with a host of obligations.

Ms Spivey recommends that a business seek legal advice before putting these policies in place to ensure they can meet the obligations.


READ ALSO: Cowra’s cheeky campaign set to get Chris Hemsworth to town


In the ACT, all aged-care workers were required to have received at least one dose of a COVID-19 vaccine by 17 September. Healthcare workers are required to have their first dose by 29 October and their second by 1 December. Those dealing with preschool and primary-aged children in ACT schools must have received their first dose by 1 November.

Up to now, residential aged-care workers have also been required to be vaccinated against influenza unless an employee has a medical contraindication to vaccination.

No rulings have been made for any other workplaces in the ACT, leaving mandatory COVID-19 vaccination largely up to the discretion of employers.

Ms Spivey says businesses are likely to have a range of different motivations for mandating or strongly recommending that employees and visitors be vaccinated.

“They may be influenced by factors such as the health and safety of employees or customers and their potential exposure to COVID-19, the operational and financial risks that cases of COVID-19 may present to the business, the possible impact on the reputation of the business of not mandating or strongly recommending that employees and customers be vaccinated and the business owner’s own views on vaccination.”

She says the intersection between COVID-19 vaccinations and work health and safety (WHS) is a complex and rapidly evolving area, but that Safe Work Australia has published guidance on the topic of mandating vaccinations in the workplace.


READ ALSO: Canberra’s hidden poor have been hit hard by the pandemic


This guidance notes that under the model WHS laws, a business owner has a duty to eliminate or at least minimise the risks of COVID-19 in the workplace so far as is reasonably practicable.

“The COVID-19 vaccines available for use in Australia help protect people by preventing serious health effects of COVID-19,” it states. “However, a vaccinated person may still unknowingly carry and spread the virus to others around them.”

Ms Spivey says that there is a risk that employees will be able to make workers compensation claims if they suffer an adverse reaction to a COVID-19 vaccination mandated or strongly encouraged by their employer.

The Commonwealth Government has established a COVID-19 Vaccine Claims Scheme for individuals who have an adverse reaction to a TGA-approved vaccine in specified circumstances.

She adds that there may be situations where an employer may legally terminate an employee’s employment where there is a mandatory COVID-19 vaccination policy in place and the employee does not wish to be vaccinated.

“Again, this a complex and evolving area of the law, and as yet there have not been any decisions by a court or tribunal that may provide further guidance.”

An employer’s safest bet is to seek legal advice before taking any such stance on vaccination.


What's Your Opinion?


Please login to post your comments, or connect with
12 Responses to ‘Are you vaccinated?’ A simple question with a not-so-simple answer
jorie1 jorie1 11:46 am 03 Nov 21

What a horrible nosy bunch of people Australians are becoming. Living in a democratic community means that people make their own medical and life choices, even choices you may personally or morally disagree with (e.g. drug addicts, abortions, smokers, alcoholics, obesity, sun cancer, blood transfusions, people who have cheat or have affairs, etc.). Unless someone is committing a crime (in which case you should report them to the police), you are not the moral gatekeeper of people’s decisions. We are heading towards a society where soon we will be requiring people to show their BMI (Body Mass Index number) to determine if they are overweight or obese, and then give them a lecture about how the obese have high rates of hospital admissions, and and start excluding them from buying fast food and soft drink. Or maybe a compulsory fitness schedule for all citizens, it’s for your own good, of course…

    Dorfrom Dorfrom 1:41 pm 03 Nov 21

    Not even close to the same thing. You can’t catch ‘fat’ from someone. Although I have my suspicions that ‘stupidity’ spreads reasonably well. Particularly among the lower educated boomer generation.

    You’re presented with a voluntary obligation to the community. You want to do it, good. You don’t? Well that’s fine but don’t whine when you’re told of the consequences of making that choice.

    jorie1 jorie1 2:54 pm 03 Nov 21

    Ridiculous. There is no such thing as a ‘Voluntary obligation’.

    Dorfrom Dorfrom 3:08 pm 03 Nov 21

    Health workers, particularly those in hospitals need to have certain vaccinations before they’re employed. They don’t want them, they’re not employed and they’re welcome to get a job elsewhere. Choice -> Consequence.

    Those of us who don’t get our medical information from jpg memes on facebook or third hand information from conspiracy websites will continue on with our lives. If getting medical information from someone like Pete Evans – whose greatest achievement is making some passable scrambled eggs, more power to you. I hear the guy down at subway gives some excellent financial advice regarding superannuation and cryptocurrency.

    phydeaux phydeaux 1:50 pm 03 Nov 21

    “…e.g. drug addicts, abortions, smokers, alcoholics, obesity, sun cancer, blood transfusions, people who have cheat or have affairs…”

    Just to help me, now many of these are:
    a) contagious?
    b) known to have vaccines effective against them?

    Can you distinguish typical fruits?

    jorie1 jorie1 3:05 pm 03 Nov 21

    Many ‘vaccinated’ people worldwide are in hospital with covid (take a look at Israel). And many unvaccinated people (with covid) are not in hospital. Some people (vaccinated or not) get covid and get sick and some do not. This is definitely not the same as Smallpox and other serious illnesses where there was a low survival rate. Covid has over 96% survival rate (vaccinated or not) and most people will live. Looks like you bought into the hysteria. Go have a nice cup of tea and have a think about solving the real issues in our community like poverty and homelessness. Stop worrying about what your neighbours are doing or what fruits they are eating…

    Dorfrom Dorfrom 4:11 pm 03 Nov 21

    Well good for you, you roll with those odds.

    Polio had a 1% chance of permanent disability, so that’s 10,000 kids hobbling around per million. With 5% of that 10,000 dying.

    However you want to roll with 4%, I guess kids with braces doing the robot walk was a little more visible than 40,000 coffins going into the ground. I’m sure you won’t be one of those hypocritical people that go running to the hospital to take up an ICU bed because they have trouble breathing then spend their lasts breaths begging for the vaccine that is too late to give. It’s only a 4% chance, if you’re healthy… and have no co-morbidities. Which I’m sure you don’t because that’d bump that up a bit.

    😉

    phydeaux phydeaux 5:48 pm 03 Nov 21

    jorie1, you leap into a whole range of imputations unrelated to anything mentioned or implied by me, yet make no attempt to deal with your logical failure. Rather, you expose your problems with odds as well. Good luck with everything.

critique critique 2:13 pm 02 Nov 21

pretty sure being frisked at an airport is something most people would find a bit of a privacy invasion, but we have to do it. So too getting drug tested or character/security checked for certain occupations. Move on precious petals and get over it.

Acton Acton 8:33 am 01 Nov 21

This has got to be stopped or it will become the norm when interacting in shops, work, ovals, schools, streets, suburbs, everywhere…..
Are you vaccinated?
Are you double vaccinated?
When did you last have it?
Show me evidence.
Show me your papers…..

Brigid Stiles Brigid Stiles 11:10 pm 31 Oct 21

Mark Borscz interesting....

Michael Blythe Michael Blythe 5:34 pm 31 Oct 21

No requirement to answer either.

CBR Tweets

Sign up to our newsletter

 Top
Region Group Pty Ltd

Search across the site