05 Oct ARE YOU ABLE TO ASK PROSPECTIVE EMPLOYEES IF THEY ARE COVID-19 VACCINATED AS PART OF PRE-EMPLOYMENT SCREENING?

Since COVID-19 vaccinations have started to be rolled out across Australia, the question of whether employers can mandate that their employees be vaccinated has been the subject of much discussion. 

However, the question of whether employers can ask prospective employees about their vaccinations status as part of a pre-employment screening process, has surprisingly not.

With COVID-19 vaccines now being more readily accessible and more and more people becoming vaccinated, this is something an employer may wish to check prior to entering into an employment relationship.  Employer’s may even find their employees expect the employer to ascertain if an individual is vaccinated before hiring them, and may raise concerns about working with a new employee is they cannot be assured of their vaccination status. 

But can an employer lawfully ask a candidate if they are vaccinated?

Work health and safety obligations

The Work Health and Safety Act 2011 (Cth) (“WHS Act”) and equivalent state and territory health and safety legislation (for example, in Queensland, the Work Health and Safety Act 2011 (Qld)), broadly requires employers to ensure, so far as is reasonably practicable, the health and safety of their workers and other persons while in the workplace.

Vaccination of employees against COVID-19, is one of the ways many employers are looking to ensure this, in the context of a range of COVID-19 control measures.

What role does pre-employment screening play?

Employers often use pre-employment screening as a risk management tool to screen prospective employees for factors that may limit their ability to perform a job safely and effectively.

A prospective employee not having had full doses of a COVID-19 vaccination may have an impact on their ability to perform their job as such, and limit an employer’s ability to ensure theirs and others health and safety in the workplace, particularly in high-risk industries, for example where social distancing is not possible. This may in turn, affect an employer’s decision to offer them employment.

Can an employer ask about COVID-19 vaccination status?

If an employer wishes to know whether a prospective employee has been vaccinated against COVID-19, they may ask an employee about this.  However, generally, they cannot compel an employee to disclose this information.

How should an employer ask for this information?

An employer may wish to ask for this information as part of a pre-employment questionnaire relating to work, health and safety and any restrictions which may prevent the prospective employee from performing their job.

For example, an employer may ask the question, “Are you fully vaccinated against COVID-19?”, with the option of three responses, i.e., “yes”, “no” or “do not wish to answer”.

The inclusion of the option for the employee to choose not to answer, makes it clear that they have the choice to not volunteer this information if they do not wish to do so.  This reduces the risk of an individual claiming that they did not consent to the collection of this information.  In some industries however, prospective employees may legally have to disclose this information and not be given a choice not to.

We recommend seeking advice on your businesses’ individual circumstances when determining how you may ask this question to ensure you are not infringing on any rights the prospective employee may have in relation to privacy and confidentiality of that information, for example under the Federal Privacy Act 1988 (“Privacy Act”).

Can that information be used in making a decision to offer or not offer employment?

Employers need to be careful if they intend to use the information provided about a prospective employee’s vaccination status in making a decision about whether to offer them employment. Each individual circumstance is different and legal advice should be sought if you intend to rely on a prospective employee’s lack of vaccination, as a reason for not offering employment.

It is important to seek advice to inform your decision, as there are risks that a prospective employee may make a claim against you, such as on the basis of discrimination. While vaccination status, itself, is not a head of discrimination, it is unlawful to discriminate on other grounds, for example, pregnancy, disability, and age.

An employer may engage in “indirect discrimination” if a candidate has disclosed a reason why they are not vaccinated, and it fits within a head of discrimination law.  This could happen for example, if an employee has disclosed a valid medical reason for not being vaccinated and you make the decision not to employ them on the basis they are not vaccinated.

There are however exceptions to this, including whether the prospective employee’s vaccination status prevents them from performing the inherent requirements of the role or if there is a health directive requiring the industry or type of worker to be vaccinated.

You should ask yourself the following questions before making a decision:

• What are the inherent requirements of the role they are being considered to perform?

• Does their non-vaccination status mean they would not be able to perform the inherent requirements of their role?

• Is their job of such a nature that they would be at significant risk of contracting COVID-19 or spreading COVID-19 to others? 

• Has there been a health directive issued requiring the industry or worker to be vaccinated?

Note: In industries where vaccination has been mandated because of the high risk (such as in the aged care industry and health care), you may lawfully be able to refuse to employ a prospective employee because they are not vaccinated because of these directives in place.

• Can accommodations be made for the individual to work unvaccinated? Can they work in a low-risk area?

• Is there opportunity for them to be vaccinated prior to starting employment?

While the above provides a general guide of the circumstances in which an employer may ask about a candidate’s vaccination status and use that to inform decisions about employment, this is not exhaustive.  Employers need to carefully consider their business and candidates circumstances. If you require advice regarding these matters, please get in touch with the team at HR Law.

The content of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.