Can you ask for proof of Covid-19 vaccination in job ads?

Covid-19 vaccination rates are currently soaring in Australia with 58% of Australians being fully vaccinated and 80% having received their first dose.

While organisations consider what the increased societal expectation of vaccination means for their workforces, Talent Acquisition teams are juggling the challenge of how to go about ensuring that new hires are vaccinated against Covid-19.

More specifically, recruiters want to know whether they can list vaccination as a requirement of candidacy in their job ads and discuss vaccination status during the hiring process.

Type “vaccinated” into the search bar of Seek and LinkedIn and you’ll be presented with a smattering of results for job ads requiring that candidates are vaccinated. However, head on over to any social media site and you’ll find plenty of claims that it is discriminatory or a breach of privacy to include proof of Covid-19 vaccination in job ads. 

So where do talent teams actually stand when it comes to managing the vaccination status of new hires?

The current situation on vaccination mandates

In June, we explored the question of whether organisations can legally enforce Covid-19 vaccination policies. At the time, company-driven vaccination mandates were very much a “watch-this-space” situation, and dependant on a number of factors, including whether employees have a legitimate reason for not being vaccinated and how protections for employees under anti-discrimination laws may apply.

However, as has become the hallmark of the pandemic, things move quickly, and in just a little over three months many industries are now required to have their workforces fully vaccinated. The national residential aged care sector was one of the first industries requiring the mandatory vaccination of their workforce. A variety of other essential services sectors have since followed – including health care, construction, education, and aviation in both New South Wales and Victoria. In the private sector, Qantas and SPC announced in August that all workers are required to be fully vaccinated and are working towards achieving that goal.   

Can I include Covid-19 vaccination as a requirement in my job ads?

With HR functions now having an understanding of what is allowable (and enforceable) in regards to Covid-19 vaccinations, the focus is now shifting to how talent leaders can manage the challenge of vaccinations. Namely, can recruiters list vaccination status as a requirement for candidacy in job ads?

According to Gabrielle Joffe, Associate at Moray & Agnew Lawyers, whether you can include Covid-19 vaccination status in job ads comes down to whether vaccination is a requirement of the role.

“If there’s a Public Health Order requiring workers in your industry to receive a Covid-19 vaccination as an employer you need to take reasonable steps to assess whether workers are vaccinated, including during the recruitment process” says Gabrielle.

“If your organisation has made the assessment that there’s a government mandated requirement for workers to be vaccinated, to protect your staff and limit risk of transmission, then there is an argument that is reasonable to include a vaccination on requirement on job advertisements.”

Is it discriminatory to include vaccination status in job ads?

Vaccination status is not a protected attribute under equal opportunity legislation. 

Employers and prospective employers must, however, consider whether an employee or prospective employee has a reason for not receiving a Covid-19 vaccination that may fall within a protected attribute.

The listed exceptions to receiving a Covid-19 vaccination to date have related to medical contraindication.

“It’s really important that employers and prospective employers who are looking to mandate Covid-19 vaccination stays up to date with what the permitted exceptions to receiving the vaccination are, and ensure they’re not discriminating against anyone with a disability, or other attribute that is protected under anti-discrimination legislation,” says Gabrielle.

It’s also important to note that the threshold for medical exemption is quite high.

While there is no existing precedent in this area addressing Covid-19 vaccination, recent examples relating to flu vaccinations in the care sectors can provide helpful insights. Only last week, the Fair Work Commission upheld the termination of a residential aged care worker who refused a mandatory flu vaccination after there was not enough evidence to support claims the worker had previously experienced an allergic reaction to the influenza inoculation.

Employers may be able to direct prospective employees to receive the COVID-19 vaccination prior to commencing work. In doing so, it is recommended that employers consider whether such direction would be lawful and reasonable having regard to anti-discrimination laws.

Include vaccination status in your hiring policy

If you want to try and ensure that new hires to the company are vaccinated, Gabrielle says that you’ll need to ensure that your official hiring and return to work policies reflect these changes.

“Companies can’t just say they want their workers to be vaccinated because they feel like it,” says Gabrielle.

“Vaccination should be listed in their official hiring policies as an inherent requirement of the job; it must be required in order for an individual person to effectively complete that job.”

This means that an organisation would first need to roll-out a clear requirement for vaccination in their existing hiring and return to work policy before they are able to start listing vaccination requirements in their job ads.

What if there is no Public Health Order?

However, just because it’s lawful and reasonable for one type of worker in your organisation to be vaccinated, doesn’t mean the same will be true for another. As per the Fairwork Ombudsman website:

Whether a [vaccination] direction is lawful and reasonable is fact dependent and needs to be assessed on a case-by-case basis. Just because it may be lawful and reasonable to give a direction to one employee, that doesn’t mean it will automatically be lawful and reasonable to give the same direction to another employee or to all employees.

These assessments need to be carefully considered, and Gabrielle suggests that employers look to the 4 tiers of workers as outlined by the Fairwork Ombudsman.

“You can look at factors such as the actual job, the risk to the community, and the outbreak in the area,” she says.

“Somebody may be Tier 4 and be able to work from home, but if your workers are based in Melbourne where there’s a significant outbreak and people are looking at going back to the office at some point, there may be an argument to be made that those tier 4 workers are required to be vaccinated.”

These are also factors to consider in the context of vaccination requirements provided in job ads where there is no Public Health Order in place.

What about issues around candidate privacy?

While some candidates and workers might have no objections to vaccination, they may take issue with companies requesting personal information pertaining to their health.

Vaccination status of a prospective employee is sensitive information and is covered by the Privacy Act and the Australian Privacy Principles. This means that information about vaccination status can only be collected where it is reasonably necessary for the organisation’s functions or activities and the individual concerned consents to the collection.

 “If you’re asking for proof of vaccination, you need to be sure you get clear, written consent from candidates and workers to view and record that information,” she says.

For prospective employees, employers must accurately (and securely) record vaccination status information and ensure that it is complete and kept up-to-date. Employers should also limit the use and disclosure of vaccination status information to the purpose for which it was collected. Finally, employers should destroy this information when it is no longer required.

Where there is a Public Health Order, if a worker is, or may be, scheduled to work at a specified facility, employers are required to collect, record, and hold vaccination information about the worker.

“If somebody does not consent to providing you with their vaccination status you might come across some issues down the track if that person isn’t vaccinated and they’re unable to perform duties inherent to that role.”

Employers also need to consider compliance with Public Health Orders and their obligation to issue lawful and reasonable directions to workers to comply.

Stay up to date with the latest advice and information

One of the biggest challenges with workplace and recruitment policies relating to Covid-19 vaccinations is that this is still such a new field; it is constantly changing.

It’s important for organisations to stay on top of the latest directives of Public Health Orders.

“It’s such a moving feast,” says Gabrielle.

For example, the recent announcement in Victoria that authorised workers must be vaccinated extends to IT and payroll staff.  “Authorised workers” is defined by the Victorian Government to include any person who performs work that is essential for the continued operation of administrative services provided by an employer to enable its employees to work from home, including for example Payroll and IT services.

“The category of authorised workers is really expanding rapidly.”

“We’ve seen this with the latest authorised worker announcement in Victoria which states that workers who are required to work as skeleton staff to ensure that other workers can continue to work from home may be considered ‘authorised workers’.”

Ultimately, before requiring that a prospective employee be vaccinated before starting employment, employers need to consider their obligations and responsibilities carefully, for example, under general protections or anti-discrimination laws.

Cover image: Shutterstock