Can I require particular evidence of my employee's vaccination status?

Most likely yes, if you have an objective reason for requesting the evidence.

For most employers who are not captured by a Public Health Direction requiring vaccination, minimal evidence of an employee’s vaccination status may be sufficient - especially where minimal control measures are available or necessary to mitigate the risks of COVID-19 in the workplace. For small business employers, this may be as limited as sighting the ‘Green Tick’ on a check-in app. 

However, in circumstances where the risks posed by COVID-19 are greater, more information may be required to more accurately assess what control measures are necessary in order to meet the primary duty of care under the WHS Act. Detail such as when vaccinations were received and whether an employee has received a:

1. booster shot; or

2. mRNA or Astra-Zeneca vaccine

are not available on all forms of vaccination evidence. Therefore, an employer may feel they need access to a particular form of evidence, such as MyGov Vaccination Certificates, in order to make informed decisions about their workplace.

Employers will most likely receive support from the Fair Work Commission and the courts for requesting specific evidence, if they can demonstrate an objective need to do so.

BHP

These matters were recently tested in FWC in another BHP test case. FWC endorsed a voluntary request to employees for them to provide their MyGov Vaccination Certificates. Even though the request was voluntary, the consequences for not providing the certificate included the potential for restricted access to site. Therefore, significant economic pressure accompanied the request.  BHP were able to establish that they had experienced two instances of attempted fraud from workers providing false evidence of vaccination. Furthermore, it was accepted that, due to the higher category of risk caused by COVID-19 in remote mine sites, BHP needed as much information possible about their employee’s level of protection against the virus.

The need for additional vaccination information, in addition to the excessive burden that manually checking ‘Green Ticks’ each day on COVID-19 Check-In apps would place on an employer were factors FWC relied upon in supporting the request.   

Is consent genuine?

The question of whether an economic disadvantage for non-compliance with a voluntary request overcomes any consent given by the employee was also considered. FWC relied on the earlier finding in BHP to establish that, although such a pressure forces an employee to make a difficult decision, it did not amount to “coercion or duress”.

Essentially, the option to provide vaccination evidence or not belongs to the employee. The fact that there may be consequences for not accepting the request and providing the evidence does not mean the employee was forced to comply with the request.

As always, thorough consultation processes with employees, HSE’s and union representatives is an essential part of any lawful request of this nature.

More requests are expected to be challenged by employees on the basis that these requests are unlawful or unreasonable. Although a general pattern of support has emerged in favour of risk mitigation strategies which result from a thorough risk assessment and consultation process, it is important to stay tuned for further updates.

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