Case law has been particularly influential of late in broadening Australia's understanding of when employers can and can't mandate a vaccine, and when they can and can't discipline an employee for failure to adhere to a vaccine mandate. Recent cases have considered both COVID-19 and influenza vaccinations. Now, the Fair Work Ombudsman (FWO) has clarified its most recent guidance on workplace vaccinations specifically against COVID-19, publishing this information on the FWO website.
Clarifying "Lawful and Reasonable"
We have confirmed in various past publications that employer directions must be lawful and reasonable to be enforceable. This remains the case, with the FWO further highlighting the need for this what is 'lawful and reasonable' to be assessed on a case-by-case basis when employers are considering mandating the COVID-19 vaccine.
The FWO advice is that a lawful direction must comply with an applicable employment contract, award or agreement, and any other Commonwealth, state or territory law that applies, such as anti-discrimination law.
Further factors must then be considered, including:
- the nature of the workplace;
- the extent of community transmission (among employees, customers and other members) of COVID-19 (including the Delta variant) in the location where the direction is to be given;
- the effectiveness of vaccines in reducing the risk of transmission (including of the Delta variant) or serious illness;
- WHS 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, such as a medical reason (please see our related article Refusal to get "the jab" - How Employers should respond); and
- vaccine availability
Four New Tiers of Work
Prime Minister Scott Morrison announced on Friday 6 August 2021 that there would be four new tiers of work to assist Australian employers distinguish those employees who could be required to get vaccinated against COVID-19 and those who could not.
These are summarised as follows:
- Tier 1 work: Employees are required in their normal 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: 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: Employees interact or are likely to interact with other people such as customers, other employees or the public in the normal course of their employment (for example, store workers who provide essential goods and services).
- Tier 4 work: Employees have minimal face-to-face interaction as part of their normal employment duties (for example, employees working from home).
So, which workers can be directed to get the vaccine?
The FWO guidance is that an employer direction to Tier 1 and Tier 2 workers to get vaccinated is more likely to be reasonable on account of the increased risk of their infection with coronavirus, and therefore the increased risk of transmission. Conversely, an employer direction to Tier 4 workers to get vaccinated is unlikely to be reasonable due to the limited risk of contraction and transmission of the virus.
The guidance in relation to Tier 3 workers is that where no community transmission has occurred for some time in an area where the employer is located, a direction to employees to get vaccinated is less likely to be reasonable. In the alternative, where there has been community transmission of coronavirus in an area in which the employer is operating their workplace, and that workplace needs to remain open despite a lockdown, a direction to employees to get vaccinated is more likely to be reasonable.
The FWO has recognised that some workplaces may contain a mix of workers from different tiers, whose circumstances may change over time according to the status of COVID-19 in the community. This means that it will not automatically be reasonable for an employer to direct all employees to be vaccinated against the virus, including if most are within one of the higher risk categories.
The FWO has made clear that this information is a guide to employers and employees, and that each set of facts must be considered on its own merits and on a case-by-case basis.
The latest FWO guidance recognises key factors that will influence whether or not COVID-19 related limitations should be implemented. These include whether:
- employees need to work in public-facing roles;
- social distancing is possible;
- the business is providing an essential service; or
- the workplace is in a designated COVID-19 hot spot.
Taking these factors into account, the Ombudsman has shared its view that the "overwhelming majority" of employers should assume that they cannot require their employees to be vaccinated against the coronavirus.
In fact, ACTU secretary Sally McManus has commented publicly that:
"the only employers who can mandate vaccinations are those where there's a public health order",
suggesting that this currently only includes aged care, quarantine services and some health settings.
This view stands to be tested by circumstances where the legal standard is met but employees are not within those categories covered by public health orders.
Other factors that may have an effect on this yet include the increased availability of vaccinations, the introduction of rapid testing, and the incidence of "hot spot" areas as the pandemic continues.
- Employers have an obligation to provide a safe work environment
- A vaccination mandate must be lawful and reasonable, being more likely for Tiers 3 and 4 workers under the new FWO guidance
- The assessment of whether an employee should be required to get the COVID-19 vaccine must be made on a case-by-case basis
- It is likely that for an "overwhelming majority" of employees, employers will not be able to mandate the COVID-19 vaccination.
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.