In response to the deteriorating COVID-19 situation in a number of states and territories, the Fair Work Ombudsman (FWO) has provided updated guidance in relation to the ability of employers to require employees to be vaccinated against the virus.
Previously, the advice of the FWO was that “In the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus” and that there were only “limited circumstances” where an employee may require their employees to be vaccinated.
The FWO advice (effective from 12 August 2021) now provides that employers can 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.
For the vast majority of employers, the relevant consideration will be whether such a direction is lawful and reasonable, having regard to the particular circumstances of the employer and its employees.
In this regard, the FWO advice provides that there are a range of factors that may be relevant when determining whether a direction to an employee is reasonable. These include:
- 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 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 FWO advice identifies four broad “tiers”, that “may be helpful as a general guide” in determining the reasonableness of a direction. These are:
- 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).
As is apparent from the FWO guidance material, the question of whether an employer can require its employees to be vaccinated is complex, and will depend on the particular circumstances of the employer and employee. In particular, careful consideration would need to be given to an employer’s obligations under work health and safety laws to provide a safe workplace (as far as practicable), including to minimise the risk of exposure to COVID-19 in the workplace, and whether other measures can be taken instead of mandatory vaccinations.
In the event that an employer sought to introduce mandatory vaccinations for employees, it would generally be necessary to consult with employees and, their representatives if applicable, and to consider the individual circumstances of employees (including health or cultural issues). Following this process, consideration would need to be given as to whether such a direction is reasonable.
Employers should seek advice before seeking to impose mandatory vaccination requirements on employees, having regard to their particular circumstances.