As an Employer, do you know your rights when it comes to your expectations around whether Employees are vaccinated or not? This issue has received a lot of media coverage in recent days, with some ‘trailblazer’ companies mandating the vaccine within their workplace.
It is important to understand your obligations as an employer when it comes to workplace health and safety and your decisions around mandating (or not mandating) the COVID-19 vaccine.
Unfortunately, there is no ‘black and white’ answer, with the Fair Work Ombudsman (FWO) imploring companies to receive their own independent legal advice before taking any steps. We will outline the general position below, however we invite you to contact us as soon as possible, if mandating the vaccine is something that you are considering in your workplace.
The Fair Work Ombudsman position and guidance
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, which is assessed on a case-by-case basis.
The first two dot points are fairly straight-forward. However, it is the final dot point that needs careful assessment. The FWO has recently provided some further guidance around this, which effectively categorises workplaces into ‘Tiers’. However, they continue to encourage employers to seek further legal advice where they are seeking to rely on the ‘lawful and reasonable’ test.
Whether a direction is lawful and reasonable will be fact dependent and needs to be assessed on a case-by-case basis.
What is lawful?
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).
What is reasonable?
There is no ‘one size fits all’ when considering this question. The FWO has provided general guidance regarding the types of things that should be taken into account in the decision-making process. This includes:
- 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.
When undertaking this case-by-case assessment, it may also be helpful as a general guide to divide work into 4 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).
- 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).
A workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time.
Despite the above, the FWO has made it clear that the mere existence of the coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus.
An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.
However, an employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.
This has provided a relatively brief summary to an issue that is constantly changing. It is likely that we will see an emergence of cases go through the Fair Work Commission and/or the Court system, which will start to provide us all with further clarity around this issue. Furthermore, new laws and public health orders might emerge, which provides the greatest level of certainty around what employers can and cannot do. But for now, the guidance is clear. All matters should be assessed on a case-by-case basis.
It is also important to note that whilst most Australian employees are employed under Federal legislation (Fair Work Act), the States and Territories are each adopting different approaches to mandating the vaccine pursuant to their own health legislation. Accordingly, each State or Territory may have varying positions for certain industries or workers.
Please get in touch with our employment team at Rankin Business Lawyers to discuss your individual requirements and how best to tackle this issue within your business. In the meantime, we will endeavour to keep you up to date with any new laws, public health orders or guidance from the FWO.
Senior Associate, Workplace Relations/Employment Law