Published August 2021
The Fair Work Ombudsman has recently released new guidance for employers regarding mandatory COVID-19 vaccines for some industries.
Whilst Australia generally adopts a voluntary vaccination policy, the recent outbreak of the highly infectious Delta Variant has now given some employers the ability to direct employees to receive the COVID-19 vaccination, as long as the direction is considered to be lawful and reasonable.
Generally, employers can only require an employee to be vaccinated when:
a specific law (such as a state or territory public health order) requires an employee to be vaccinated; or
the requirement is permitted by an enterprise agreement, other registered agreement or employment contract; or
it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.
To help employers understand whether they can introduce a mandatory vaccination policy in their business, the Fair Work Ombudsman has introduced a four-tier system explaining where a mandatory COVID-19 vaccine direction may considered to be lawful and reasonable.
Employers must assess their employees on a case-by-case assessment and use the 4 tiers below as a general guide:
Tier 1 – where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
Tier 2 – where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
Tier 3 – where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
Tier 4 – where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
If you have employees whose duties fall under tiers 1 and 2, it would likely be considered lawful and reasonable for an employer to direct those employees to get the COVID-19 vaccine.
For employees whose duties fall under tier 3, this is a little more complicated. The Fair Work Ombudsman has stated the below regarding what is and is not considered reasonable:
Where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable.
Where community transmission of coronavirus is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.
If your employees are only performing duties under tier 4, then it would be considered very unlikely to be lawful and reasonable due to the minimum interaction these employees have with others.
OTHER FACTORS TO CONSIDER
Legal advice should be sought by employers before deciding whether to make COVID-19 vaccines mandatory, as all relevant factors need to be considered. This includes a range of factors, such as:
The likelihood of the virus occurring in the workplace;
What is already known or ought to be known about the virus and how it can be eliminated;
The nature of the workplace (eg. whether social distancing is possible, interactions with others, whether the business is providing an essential service etc);
The extent of community transmission in the area where the direction is to be given;
What the potential degree of harm will be if the virus was to occur in the workplace;
The employees circumstances, duties and any risks associated with their work;
Whether employees have a legitimate reason for not being vaccinated;
The effectiveness of vaccines;
Workplace health and safety obligations;
Government health directions that are in place.
It’s also important that any employer intending to implement a policy or requirement relating to vaccinations must take appropriate steps to consult with their employees (about major workplace change), as necessary under the relevant Award or registered agreement. There may be additional consultation requirements under workplace health and safety legislation.
ALTERNATIVES TO COMPULSORY VACCINATIONS
If you find that your business doesn’t meet the requirements to make vaccines mandatory, you can still encourage and support employees in getting vaccinated to help protect your workplace and the community against COVID-19.
Below are some suggestions on how you can encourage and support employees:
Provide leave or paid time off when employees get vaccinated;
Provide transport to and from vaccination appointments;
Allowing employees to start later or finish early to attend appointments;
Provide a one off payment or incentive for getting vaccinated;
Provide reliable and up-to-date information to employees about the importance and effectiveness of vaccinations. You can find resources from the Department of Health to help promote this;
Look at alternative work arrangements where an employee refuses to be vaccinated or are waiting on the vaccination to be available to them.
If you do find that some employees may be unable to vaccinate due to personal reasons (i.e. religious beliefs or medical conditions), employers should look at ways to accommodate them in the workplace the best they can. For example, implementing regular COVID-19 testing for those employees on a periodic basis. Whilst it is very likely that the percentage of employees being unable to vaccinate will be small, each of these employees should be assessed on a case-by-case basis.
We encourage all businesses to familiarise themselves with the information found on the Fair Work Ombudsman website here, along with the Safe Work Australia website here – the pages have comprehensive FAQ pages which we are confident you will find useful.
If you have employees working from home, don’t forget to download our FREE WFH Toolkit and read our update on Getting Your Team Setup to Successfully Work From Home.