Not surprisingly, Rubix Legal gets a lot of enquiries about how employees can respond to various steps being taken by employers around COVID policies.
This ranges from questions about COVID, vaccination rights, taking leave, exemptions, appeals, consultation, policies and mandates.
In this article, we’ll provide some simple (where possible!) answers to the most common set of COVID-related employment questions we’re getting regularly.
For a lot of these topics though, the devil is in the detail. While these answers contain our general responses, it is always best to get specific advice about your individual circumstances before taking dramatic steps or forcefully engaging with your employer.
To help you find what you’re after we have broken up our topics into three main areas:
This FAQ list is general information only, and should not be taken as legal advice for your specific circumstances. We highly recommend you get individual advice. You can book in for a 30 Min Express Consult – Vaccination and your Rights here or choose from one of our longer consultation options.
Answers to Common Questions about COVID and Employment
This section answers common questions relating to COVID itself and the interactions of testing, exposure and illness with your employment.
Do I have to tell my Employer if I catch COVID?
Your employer is allowed to ask you if you have COVID, and more likely than not, you will be required to give them an (honest) answer.
So while, technically, you could request sick leave without disclosing your condition, your firm’s policies or questions will likely require you to disclose that you have COVID.
Can my Employer Make me get Tested for COVID?
An employer can give employees certain directions provided they are lawful and reasonable.
That includes, in some cases, requiring them to get medical testing.
More likely than not in the current environment, an employer’s request that you get either a RAT or, if positive, a PCR test will be considered lawful and reasonable. That is especially the case if your job requires you to keep working in contact with others.
Someone at Work has been diagnosed with COVID – Should I isolate or go to work?
The shifting definitions of “close contact” in Queensland will generally affect your response here.
Right at the moment (1 March 2022) you are a close contact if you “have been with a person that has COVID-19 for more than four hours in a house or other accommodation, a care facility or similar.”
Of course, if you have symptoms that may be COVID, then you should consider testing and staying at home, in discussion with your employer.
However, right now the simple diagnosis of someone at the office with COVID does not automatically require you to isolate.
Can my Employer make me Go Home if I’m Sick?
Similar to medical testing, your employer can direct you to go home if it is lawful and reasonable to do so.
If you have any symptoms of COVID (or any other highly contagious condition), it is likely that such a direction would be considered lawful and reasonable.
Can my Employer make me Go Home even if I’m Not Sick and Not a “Close Contact”?
This will be a case by case assessment. It might be that in some circumstances where there is high risk or severe consequences of illness being spread in your workplace, your employer could lawfully send you home. This is despite you not showing symptoms and not meeting the technical definition of a “close contact”.
For example, let’s say you have a 3-hour meeting in a small office with someone who is later found to have COVID and you work in aged care. Such a direction might be reasonable in those circumstances.
However, if you simply spoke to someone in passing and work alone in an office, the balance might tip the other way.
You should check what your entitlements are to paid leave in circumstances where you are directed to go home.
Answers to Common Questions about your Medical Privacy and Employment
Can My Employer force me to disclose if I’m Vaccinated?
While you have a general right to privacy, your employer has the right to ask specific questions and require answers.
In this case, it is generally considered a reasonable encroachment on your privacy for your employer to ask you if you are vaccinated. This is especially the case if they have implemented a mandatory vaccine policy.
You should also check what other policies and procedures your employer has in place, such as a privacy policy.
Can My Employer Require me to Answer whether I have Tested Positive for COVID?
Yes, for similar reasons to the vaccination status question above. Because it is highly relevant to the others in your workplace, your employer can generally require you to tell them if you have tested positive for COVID.
A broader issue may arise however where this information is circulated to other staff without your permission or consent.
Can My Employer Require me to say if I am a Close Contact or have been Exposed to COVID?
As with all encroachments on your privacy, this will be considered on a case by case basis.
So, if you work exclusively from home, it is unlikely for such a question to be a reasonable imposition on your rights to privacy.
However if you work in a close-knit office environment with regular interactions then a policy or direction for employees to disclose this kind of information is probably fine.
Can My Employer Tell Others if I have Contracted COVID?
Within reasonable limits, your employer can disclose this kind of medical information to others. That is especially the case where others will need to assess whether they should get tested, go home, or take other steps for their own health.
However, the prevailing principle is that your employer should only disclose what is necessary for the continued good and safe operation of the business, and nothing more.
I Have an Exemption from Vaccination – Do I have to Give my Employer Details of the Reasons for Exemption?
This will only be relevant if your employer has implemented a mandatory vaccine policy.
As we set out in our more detailed article on the topic of medical exemptions for COVID, you will need a proper medical certificate that sets out the duration of the exemption and its nature in sufficient detail for your employer to understand what is going on.
However, that does not mean that they are at liberty to disclose this information to other employees or third parties.
What Kind of Medical Condition or Information Do I Need to Qualify for an Exemption?
We discuss this in more detail in our medical exemption article here.
I have a serious medical illness but its not a recognised medical contraindication. What are my rights?
Realistically the list of available medical exemptions to avoid a mandatory vaccine policy is extremely short.
If your medical illness is not an accepted, medically supported contraindication (whether temporary or permanent) for a vaccine your employer is likely to be within its rights to require you to get vaccinated. However, this does not mean that you should ignore the advice of your treating medical practitioners or give up on trying to negotiate reasonably with your employer. Your employer may be willing to consider reasonable accommodations in certain circumstances.
Answers to Common Questions about Vaccines and Mandates
Is it True that My Employer can Force me to Get Vaccinated? Are Mandates Lawful?
We discuss vaccine mandates in more detail in our article here.
For employers covered by public health orders requiring vaccine mandates, the view is that they have no choice but to comply or else risk substantial penalties. In that regard, the mandates will be considered lawful.
For “voluntary” vaccination policies, employers need to consider all of the relevant factors at play when implementing a vaccination policy. That might include different requirements for different categories of employees who work in alternative venues or capacities.
Whether such a policy is lawful will depend on all the circumstances. Most to date have been found to be lawful and reasonable policies to implement.
Do I Have to Comply with the Mandate?
If the mandate is lawful and you do not have an exemption, you will need to comply with it or face likely disciplinary action and potential termination from your employment.
What Happens if I Don’t Comply with a Lawful Vaccine Mandate?
Your employer may take several different actions.
It may be that you can be re-assigned to a position where the mandate was not imposed.
You may be put on unpaid leave indefinitely.
Your employer could also terminate your employment in some cases, although would need to take care to avoid allegations of unfair dismissal or discrimination.
Are there Ways I can Refuse to Comply or Defer Complying with a Vaccine Mandate?
If you have a medical condition and believe you can get an exemption then you should ask your employer to allow time for that to occur.
If you believe a vaccine mandate is unlawful you can:
- Initially, ask a Tribunal or Court (but get advice first!) to “stay” the effect of the mandate until a full hearing is held. This will mean you do not have to comply while the full case is heard; and
- Ask for the mandate policy to be struck down as unlawful.
To date, most cases attempting to get a mandatory vaccination policy struck down have been unsuccessful.
I am Concerned about Working with Unvaccinated People – Can I refuse to Do So?
This will be best solved by a discussion with your employer.
Generally speaking, however, if your employer has not made vaccination mandatory you are unlikely to have much luck using legal process to push for a change in your work position (or that of others) out of concern about working with unvaccinated individuals.
That might be slightly different if your employer works in an industry where a law has required mandatory vaccination and it is not complying with that requirement.
Isn’t a Vaccine Mandate contrary to the Nuremberg Convention Or Some Other Law?
To date no Tribunal or Court in Australia has accepted this argument.
Generally this is on two grounds:
- The vaccine is not considered “experimental” as that phrase is used; and
- A vaccine mandate is not considered to be “forcing” someone to get the vaccine, again within the meaning that phrase is used in the Convention.
Of course, there remains many differing views on whether the mandates are lawful.
I Work from Home – Does a Vaccine Mandate Apply to Me?
Some vaccine mandates have been poorly or hastily drafted and implemented. This means that some of them have not adequately taken into account different positions or working circumstances and simply applied to all employees.
So, on its strict drafting, a mandate could apply to you even if you work entirely from home and have zero contact with other staff or high-risk persons
Whether such a mandate would be considered lawful and reasonable would need to be tested. Rubix Legal has had success with challenging mandates in this context, through strategic negotiation.
Can I Claim Religious Discrimination To Get out of a Mandate?
Some religious beliefs are against the use of the COVID vaccines, especially those with a connection to aborted foetal cell-lines.
Generally speaking, religious discrimination applies where you are treated differently as a result of your beliefs or religion.
There is a further complication that even within religious groups there is not necessarily a consensus position.
As a result the Queensland Human Rights Commission page addresses this question in the following way:
What are my Rights if I am Terminated for Failing to Comply with a Vaccine Mandate?
If you believe the mandate is unlawful or that you have been unfairly dismissed, you should promptly get legal advice. There are significant time limitations on bringing an unfair dismissal case, so you should move quickly.
Generally, the questions to be asked will be:
- Is the mandatory vaccine policy lawful?
- Did you have a legitimate and lawful reason for not complying?
- Was the process by which you were fired harsh, unjust or unreasonable?
Do I Have to Comply with a Vaccine Mandate if I am Pregnant?
Pregnancy is not currently an accepted contraindication to COVID vaccination. Absent a specific condition or concern supported by your doctor that does warrant an exemption, pregnancy alone will not likely allow you to avoid a vaccine mandate. However, at Rubix Legal we have seen a number of temporary exemptions agreed to by employers where the employee is pregnant.
Need COVID Help with your Employment?
These and many more questions are coming up on a regular basis.
At Rubix we are offering a COVID specific consultation for people in adverse circumstances related to vaccine mandates, termination or changes in work circumstances connected with COVID or employer response. Book your appointment here if you need help.
