Some Australian companies have already said they will be mandating their employees are vaccinated against COVID-19, but in the United States, Delta Air Lines has gone one step further and said it will effectively dock the pay of unvaccinated workers.

The company said that from November unvaccinated employees enrolled in the company’s healthcare plan will be subject to a $200 monthly surcharge, so no jab means less pay.

But how would such a policy stack up legally in Australia. According to Workplace relations advisor Employesure the Fair Work Act means this could not legally be replicated here.

“The case in the US is an interesting one. While Delta Air Lines understandably want to protect the health of its staff, under Australian law, docking the pay of unvaccinated workers toward a health insurance surcharge is not something that could introduced,” said David Price, CEO of Employsure.

“There are provisions in the Fair Work Act which prohibit employers from requiring their employees to make payments that are not reasonable or for the employees’ benefit.

“Any requirement to pay any sort of ‘fee’ for being unvaccinated is likely to be considered unreasonable and not for the employee’s benefit.

“If a business owner in Australia attempted to charge unvaccinated workers or dock their pay, it would therefore be in breach of these provisions. Likewise the same restrictions apply to deductions from employee wages.”

Employsure said that if Australian employers identify the transmission of COVID-19 as a risk in their workplace, they need to take steps to eliminate or minimise the risk to the best of their ability, and all reasonable measures to control the risk of transmission and infection should be considered.

These measures can include directing an employee to be vaccinated, as long as that direction is lawful and reasonable. If an employee refuses to follow a lawful and reasonable direction to be vaccinated, the employer will need to consider the employee’s reasons for refusal, and address that through the normal avenues based on what is reasonable in the circumstances. This could mean taking disciplinary action or terminating an employee, or varying their role to minimise their risk of infection.

The company also said that employers must ultimately be cautious when it comes to mandating vaccines in the workplace.

Andy Young

Andy joined Intermedia as Editor of The Shout in 2015, writing news on a daily basis and also writing features for National Liquor News. Now Managing Editor of both The Shout and Bars and Clubs.

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