• Employee
  • COVID-19 affected person
  • NSW

What is this resource?

To help contain the spread of COVID-19 and keep the community safe, the New South Wales (NSW) Government has issued a number of directions that set obligations up for employers and facilities in relation to the vaccination of their employees (NSW Vaccination Orders).

On this page, you’ll find information on COVID-19 vaccine requirements in the workplace, including whether employers can require their employees to be vaccinated against COVID-19 as a condition of employment.

This resource is specific to Vaccination Orders that impact employees in NSW. Each state and territory is different, and you should refer to the specific requirements for your state. For information on COVID-19 vaccine requirements in Victorian workplaces, see our resource on Victoria’s COVID-19 Mandatory Vaccination Directions. See the Fair Work Ombudsman website for a summary of current state and territory public health directions.

There are different types of Mandatory Vaccination Directions that impact employees in NSW. Depending on your industry, you may be required to be partially or fully vaccinated by a certain date in order to continue working. For detailed information about these requirements, including when they apply, go to:

 

 

 

Organisations and employers can also read our resource on managing vaccines in the workplace.

 

Can an employer require their employee to get vaccinated in NSW?

In general, employees must comply with lawful and reasonable directions from their employer. Whether an employer’s direction to get a COVID-19 vaccination is lawful and reasonable will depend on the circumstances.

If an employee is covered by a NSW Vaccination Order then it is likely reasonable for an employer to require their employees to be vaccinated.

Where there is no legal requirement for an employer to have vaccinated staff, or if an employee can perform their work from home, then whether an employer can impose vaccination requirements will depend on the circumstances of each case.

Under occupational health and safety laws, employers have a duty to do whatever is reasonably practicable to ensure workplace safety. In some circumstances, this may justify an employer requiring staff to be vaccinated, even where there is no specific requirement in any legislation or a government order. Safe Work Australia has released general and industry-specific guidance on vaccinations and work health and safety obligations.

Where your work exposes you to a higher risk of contracting COVID-19, or requires you to come into contact with vulnerable people, your employer can reasonably require you to be vaccinated against COVID-19. The Fair Work Ombudsman has published information about which circumstances would be considered reasonable for an employer to require their employees to be vaccinated.

Grounds for medical exemptions

The NSW Vaccination Orders provide for a limited number of exceptions, including where a employee has a recognised medical reason that makes getting a COVID-19 vaccine inadvisable (for example, previous anaphylaxis or another adverse reaction to a COVID-19 vaccine). If an employee believes that they have a legitimate medical reason for not getting the vaccine, they should apply for a medical exemption through their medical practitioner (such as their GP). To qualify for an exemption, an employee must be unable to receive all approved COVID-19 vaccines. Evidence of contraindication (a medical symptom or condition which would make receiving a vaccine risky) to COVID-19 vaccination can then be provided to your employer using either:

If an employee qualifies for a medical exemption, their employer may make reasonable adjustments to their role to comply with work, health and safety laws (as well as anti-discrimination laws). However, in some instances, it may not be possible for an employer to adjust an exempted employee’s role. Factors that an employer could take into consideration include the practicalities of the employee’s work and the financial costs of making the adjustment. The Fair Work Ombudsman has published useful guidance on alternative work arrangements in the context of COVID-19. There are no exceptions in any of the current health directions in NSW for people who have recovered from COVID-19.

What information can employers collect from employees covered by a NSW Vaccination Order about their vaccine status?

The NSW Vaccination Orders require that employers take all reasonable steps to ensure employees comply with the Order. If your employer requests that you provide them with information about your vaccination status, you must do so.

Evidence of an employee’s vaccination status can be any evidence from the Australian Immunisation Register that shows the number of vaccine doses they have received (or that they have a medical exemption). This can include:

  • an immunisation certificate, or
  • an immunisation history statement.

Services Australia provides more information on proof of COVID-19 vaccinations.

Where an employee’s vaccination status is unknown, an employer can prevent them from attending work until the employee has provided evidence of their vaccination status or medical exemption

Further, NSW Vaccination Orders state that employees must provide vaccination information to their employer if requested. Failure to do so will be in breach of the NSW Vaccination Order and an employee may be liable to penalties.

If an employee is not covered by a NSW Vaccination Order, then their employer can only collect evidence of their vaccination status in limited circumstances. Find out more at the Office of the Australian Information Commissioner’s information page on COVID-19 vaccinations and privacy rights as an employee.

If an employer is a NSW public service body or a public agency (such as a government agency, local council or university) or a health service provider, they may have slightly different privacy obligations. The NSW Information and Privacy Commission has published information for employees on the privacy obligations of NSW public sector organisations and health providers.

What happens if an employee gives incorrect information to their employer about their vaccination status?

Under the Public Health Act 2010 (NSW), any individual who fails to comply with a Ministerial direction is liable to penalties, including a maximum penalty of imprisonment for 6 months and/or a penalty of up to $11,000, plus a further $5,500 fine each day the offence continues.

By providing false information to an employer, and exposing them to a risk of a penalty, an employer may be justified in taking disciplinary action against an employee (including termination) for serious misconduct.

Can an employer take disciplinary action against an employee for refusing to be vaccinated against COVID-19?

Where a NSW Vaccination Order applies, an employer may argue that they have a valid reason to dismiss an employee because, as a result of not taking the vaccine, the employee is not ready, willing and able to perform their duties and/or do not meet the inherent requirements of their role.

Where there is no legal requirement for an employee to be vaccinated, an employer may still be able to argue that they have a valid reason to dismiss an unvaccinated employee on the basis that their vaccination requirement is lawful and reasonable in all the circumstances.

For more information, see the Fair Work Ombudsman’s guidance on potential disciplinary action for vaccination refusals.

Can an employer stop paying an employee for refusing to be vaccinated against COVID-19?

Employers generally don’t have the power to suspend employees without pay unless an enterprise agreement, award or employment contract allows them to.

However, employers can refuse to pay employees where they are not ready, willing or able to meet the requirements of their job. This means that an employer can refuse to pay an employee if they haven’t met the vaccination requirements under a NSW Vaccination Order (unless they are taking paid leave during this time). For more information, see the Fair Work Ombudsman’s guidance on enforceable government directions.

I have been dismissed or subject to other ‘adverse action’ by my employer. What can I do?

If you are dismissed, demoted or subject to any other adverse action because of a refusal to comply with a direction to be vaccinated, and you have genuine grounds for refusing to comply (such as a disability or medical condition that prevents you from getting vaccinated against COVID-19), you may have a discrimination claim (see Australian Human Rights Commission and Anti-Discrimination NSW) or a general protections claim.

For a general protections dismissal claim, an application must be lodged with the Fair Work Commission within 21 calendar days after the dismissal takes effect.

For a general protections claim which involves adverse action that is not dismissal (for example, if an employer has refused to hire you, demoted you, or you have been denied a pay increase) then an application can be made to the Fair Work Commission or the court within 6 years from the day the adverse action occurred.

Generally, complaints about discrimination must be made to either the Australian Human Rights Commission or Anti-Discrimination NSW within 6 months of the discrimination occurring.

A general protections, discrimination claim and an unfair dismissal can’t be claimed at the same time. If an employee is thinking about lodging a compliant, we suggest seeking legal advice as soon as possible.

What can an employee do about a COVID-19 vaccination-related unfair dismissal?

If an employee believes that they have been dismissed in a way that is “harsh, unjust or unreasonable”, they may be able to lodge an unfair dismissal claim with the Fair Work Commission. However, unfair dismissal claims are only available to some employees. To determine whether you are eligible to make an unfair dismissal claim, you can take the Fair Work Commission’s online eligibility quiz. There are also strict time limits on unfair dismissal claims. Employees need to lodge an application with the Fair Work Commission within 21 days of the dismissal taking effect. Visit the Fair Work Commission’s website to:

Can an employee be “stood down” if they refuse to be vaccinated?

Stand downs are only available in limited circumstances. Employers may be able to stand employees down without pay during a sudden workplace closure that is outside the employer’s control. For example, they may be able to stand down employees when:

  • a government direction required the business to close (which means the employee can’t be usefully employed, even from another location);
  • a large proportion of the workforce is required to self-quarantine and the remaining workforce can’t be usefully employed; or
  • there is a stoppage of work due to a lack of supplies essential for operation, for which the employer isn’t responsible.

The Fair Work Ombudsman has released information about stand downs in the context of COVID-19.

COVID-19 vaccines and discrimination

Both NSW and Federal legislation prevent employers from discriminating against employees on the grounds of a disability, which can include a medical condition. This means that a workplace that imposes a strict policy requiring COVID-19 vaccinations, and does not allow for flexibility in the case of medical exemptions, may be in breach of anti-discrimination laws. Depending on the circumstances, a particular role may require a person to be vaccinated against COVID-19. There may also be consideration as to whether adjustments are required to perform the role and whether these are reasonable in the circumstances. The Australian Human Rights Commission has information for employers and employees about COVID-19 vaccinations and federal discrimination laws. For more information about vaccines and NSW’s discrimination laws, see Anti-Discrimination NSW’s explainer on your rights during COVID-19. If an employee’s reason for not getting vaccinated is, for example, they don’t believe in taking vaccinations, then they will not be protected by Federal or State discrimination laws. If an employee believes they have been unlawfully discriminated against, they may choose to lodge a complaint with:

The Australian Human Rights Commission or Anti-Discrimination NSW may investigate your complaint and speak with the people that you have complained about. A conciliator may also call you to ask for extra information. If the conciliator declines your complaint after looking into the situation you will receive a letter explaining why. Alternatively, the matter may be referred for conciliation, where you and the person you have complained about talk through the issues and try to reach a resolution. Generally, complaints about discrimination to the Australian Human Rights Commission (AHRC) must be made within 6 months of the discrimination occurring and complaints to Anti-Discrimination NSW must be made within 12 months of the discrimination occurring. As applicants cannot apply to both AHRC and Anti-Discrimination NSW at the same time, we recommend that employees seek legal advice to help decide which pathway is best for them before making an application.

More self-help resources

 

This resource was last updated on 21 December 2021. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation.

Was this page helpful?
  • This field is for validation purposes and should be left unchanged.