The landscape around mandatory vaccines has shifted since March 2021 when we discussed this topic in our Employment Law webinar. As numerous States and Territories battle outbreaks of the Delta variant of COVID-19 and Australia's vaccination program is being rolled out the Fair Work Ombudsman has issued new advice for employers considering making the Covid vaccine mandatory for their employees.
The updated advice from the Ombudsman released last week replaced previous advice that most employers would not be able to require their employees to get the Covid vaccine.
The Ombudsman has set out a four-tier system to determine when it would be reasonable for an employer to compel their employees to get the Covid vaccine.
As we discussed at our webinar in March employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable will be assessed on the individual facts on a case-by-case basis. For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).
Factors that influence the reasonableness of a direction include: the nature of the workplace, community transmission, the effectiveness of vaccines, work health and safety obligations, employees' circumstances, employees' reasons for refusing vaccination and vaccine availability.
The Ombudsman has divided work into four broad tiers:
- 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); and
- 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 Ombudsman has noted that the coronavirus pandemic doesn't automatically make it reasonable for employers to direct employees to be vaccinated against the virus. A workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time.
The Ombudsman has declared that it is more likely to be reasonable to require vaccination for tier one work, where employees are in contact with people at risk from coronavirus such as airline crew, or in tier two, where they work with vulnerable people, such as aged care. For tier three work that involves interaction with the public, employers may be able to require vaccination but this is more likely to be reasonable if there is community transmission. Finally for tier four work with minimal face-to-face interaction an employer's direction to its employees to get the vaccine is unlikely to be reasonable given the limited risk of transmission.
It is important for employers to be cognisant of the fact that regardless of the tier/s that may apply to the work performed by its employees, the reasonableness of a direction will always be fact dependent and must be assessed on a case-by-case basis. This will require careful analysis of all relevant factors applicable to that individual workplace, the employees and the type of work performed. The Ombudsman has urged employers to get their own legal advice if they are considering making vaccinations mandatory for their employees. Pointon Partners is able to provide such advice.
The Ombudsman has also announced that if an employer has provided a lawful and reasonable direction to be vaccinated for coronavirus and an employee complies, the employer can also ask the employee to provide evidence of their vaccination.
An employer may ask to view evidence of an employee's vaccination status without raising privacy obligations provided they do not collect (i.e. make a record or keep a copy of) this information. An employer should not collect vaccination status information from an employee unless the employee consents and the collection is reasonably necessary for the employer's functions and activities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.