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

“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.

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.

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.

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.