Can HR demand proof of employee's COVID jab status?

The Fair Work Commission has thrown out several unions’ bid to show that recording COVID-19 vaccination certificates as a condition of entry to the workplace breaches the Privacy Act and the right to bodily integrity. Although the FWC acknowledged that a worker’s vaccination status was “sensitive information”, it found that the employer’s direction to record proof was “lawful and reasonable”.

The case was brought by several unions on behalf of a group of Queensland coal miners after their employer enforced a new direction that it would record employees’ proof of vaccination against COVID-19 upon entry to the site.

The unions sought for the FWC to rule that the direction was “unlawful and unreasonable”.

The unions’ case

The unions submitted that an individual must have “a genuine opportunity to provide or withhold consent” without the threat that their employment could be terminated if they refuse, for their consent to be valid.

In addition, the unions also stated that recording workers’ vaccination status was a breach of the Privacy Act, which “cumulatively tips the balance against the reasonableness” of the direction.

The unions proposed a “reasonable alternative” to collecting vaccine information, that workers show a green tick symbol on their mobile upon each entry to the workplace, with no permanent record created.

Judgment

The FWC commented that the employer has “an obligation and responsibility to keep workers safe and healthy”, that COVID-19 remains a “significant risk” to the company’s workforce, and that vaccination is “the most effective and efficient control available to combat the risks posed by COVID-19”.

The FWC was not satisfied that the employer’s direction to provide proof of vaccination was a breach of the legislation or workers’ rights. It commented that employees are “fully informed about the rationale for the direction that they are fully vaccinated… the use that will be made of that information, and the process by which the [company] will ensure it is held securely.”

The FWC also said the unions’ proposal that vaccination status not be recorded was “unworkable”. It concluded that the employer’s direction was “lawful and reasonable” and dismissed the unions’ claim.

Key takeaways for HR leaders

• An employee’s vaccination status is an example of “sensitive information”
• However, it may be lawful to collect proof of vaccination status, if it can be shown that it is “reasonably necessary” for the company’s functions
• Employers may be permitted to implement a mandatory vaccination policy if their direction is “lawful and reasonable”
• In the case above, the FWC was not satisfied that the threat of termination of employment vitiated the consent provided by workers