SEEK boss predicts employers will ‘inevitably’ request vaccination status of job seekers, but is it legal?

Employers that enforce a vaccination mandate in their workplace will be able to request the vaccination status of candidates on job ads, according to one employment law expert.

Under Fair Work’s guidance, where a vaccination mandate is ‘lawful and reasonable’, such as if it is linked to a public health order, or has been enforced in a setting that involves frequent face-to-face interaction, employers will be able to request the vaccination status of candidates on a job ad and from current workers.

It is a new practice that Ian Narev, the chief executive of the job search platform SEEK, expects will become more common on the job posting website.

“I would say that is inevitable and imminent frankly,” Narev told The Australian.

Employers, however, can only require vaccination details from workers if they have enforced a vaccination mandate in their workplace that meets Fair Work’s current guidelines.

The guidelines state that employers can require staff to get vaccinated in specific circumstances, including if there is a state public health order in place, or whether the workplace would expose people to an increased risk of being infected with coronavirus.

Each state manages its own public health orders in relation to mandating vaccines. For example, in New South Wales unvaccinated people cannot work as quarantine, transportation or airport workers. Construction workers in COVID-19 hotspots are also required to be vaccinated.

Some businesses outside of these categories have begun mandating vaccinations, including the large taxi service 13Cabs, Qantas and the fruit processor SPC.

Employment and industrial law barrister Ian Neil SC says it is appropriate for employers to request the vaccination status of candidates in the application process only if it is lawful and reasonable for that employer to direct an existing employee to be vaccinated.

“As vaccines become available that will be so of most employers in relation to most employees who work in physical proximity with other employees or customers,” Neil tells SmartCompany.

However, Neil says employers should be aware of anti-discrimination laws, which make it unlawful for an employer to discriminate against an unvaccinated candidate or employee if they could not get vaccinated on the basis of their age, sex, race or disability.

“They are all protected attributes and it’s unlawful to discriminate against someone, including in relation to offering work, on the ground of any of those protected attributes,” he says.

Trent Hancock, principal at Jewell Hancock, says employers should also be mindful of Australian privacy principles when collecting information related to a staff member’s medical records.

“Employers should always comply with the Australian Privacy Principles established under the Privacy Act 1988 (Cth) regarding the collection, use and disclosure of personal information,” Hancock tells SmartCompany.

Hancock says best practice dictates that an employer has a workplace privacy policy which sets out why employees might be asked for personal information, how the information will be collected, stored and used, and who the employee can speak to if they have concerns.

“These principles also apply to personal information obtained about unsuccessful job candidates, including information about vaccination details,” he says.