Yesterday the Fair Work Ombudsman updated it’s guidance on whether employers can mandate vaccines in the workplace. Mandatory vaccination is certainly a frequent topic that’s being raised amongst employers. particularly as the Delta strain takes over.
While the Ombudsman encourages employees and employers to work collaboratively to find solutions that suit both individual and workplace needs, we know that in some situations agreement to a pathway forward is problematic. As such the Ombudsman has released guidance on when employers may be able to insist on vaccinations, but they suggest seeking professional guidance before making such a decision.
The Ombudsman states that employers can only require their employees to be vaccinated where:
- a specific law (such as a state or territory public health order) requires an employee to be vaccinated;
- 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.
In terms of the last point, whether it’s lawful of reasonable will depend on the situation and should be measured on a case by case basis.
The Ombudsman provides further explanation on determining reasonableness, and highlights the following to take into consideration if considering mandatory vaccination:
- the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service);
- the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community;
- the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant;
- work health and safety obligations;
- each employee’s circumstances, including their duties and the risks associated with their work;
- whether employees have a legitimate reason for not being vaccinated (for example, a medical reason); and
- vaccine availability.
The Ombudsman has released guidance, in the form of a four tier system for employers to better understand their rights and obligations. They state that an employer’s direction to employees performing Tier 1 and Tier 2 work is more likely to be reasonable, given there is more risk of getting coronavirus in these settings or spreading coronavirus to vulnerable people. On the other hand, employees performing Tier 4 work are at limited risk therefore a direction in these settings is unlikely to be reasonable. Tier 3 is a bit more fluid with the ability to direct employees to have vaccinations more likely to be reasonable at times when there is high community spread.
The Tier System:
- Tier 1 work, 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 work, 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 work, 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 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
The key takeaway for employers is that the Tier System is for guidance only and reasonableness will always need to be assessed on the facts and decisions made on a case by case basis.
Employers who are considering mandating vaccinations will likely need to consult employees first to understand their views and assess whether they may need further advice before making the change. Also, under WHS laws, employers are required to consult their workers in relation to possible control measures to address workplace risks.
Other key points for employers to consider:
- Where vaccines are mandatory, the employer should cover travel time and provide time off work to attend without loss of pay.
- Employers should always review any applicable Awards, Enterprise Agreements, Employment Contracts or current policies to check if there is anything that could impact their decision.
- Where an employee is unwell after receiving a vaccination, the employee could use sick leave entitlements to cover any time off work due to illness.
- There are other considerations in terms of new employees, discrimination laws, and where any employee may refuse to be vaccinated following a new mandatory vaccination policy being introduced. We recommend you speak to your employment relations consultant about these situations to gain more clarity.
Don’t hesitate to contact Industryus if you would like to discuss your rights and obligations as an employer. We offer a free initial consultation which can be booked online here.
This article does not constitute advice and employers should always seek professional advice prior to implementing a mandatory vaccination policy.