Approx. 5 minute read
The following information has been sourced with reference to the websites of the Fair Work Ombudsman, WA Government, Safe Work Australia and the Department of Health (National). Links to these bodies can be found at the end of this article.
A quick disclaimer is unfortunately needed before we get to the bulk of this article. The following information is relevant to Fair Work System employers and you must seek independent advice before acting or relying upon any of the content (sorry but given how rapidly information is changing, we have to issue you this caveat)!
You will no doubts have heard that many government agencies, including the Fair Work Ombudsman, have recently updated information for employers regarding when vaccinations for employees can be mandatory.
A bit of background…
Unfortunately, this matter is still legally a grey area, as there is no underpinning legislation and no legal precedent set (yet) regarding mandatory COVID-19 vaccines in the workplace. Thus, many factors will come into play in determining whether it is ‘lawful and reasonable’ to require vaccinations.
Chief issues being played out in this ‘lawyer’s picnic’ are whether:
- WHS laws allow for it (e.g. an employer’s obligations to keep employees safe make it reasonable to mandate a vaccination).
- Inherent requirements of the role make it lawful to require an employee have to get vaccinated (e.g. to perform their role).
Compounding this issue further, in the absence of specific legislation regarding mandatory COVID-19 vaccines, employers must also contend with State government health directions….
…not to mention employees who might have medical grounds for refusing to get vaccinated!
Until governments do step in and introduce legislation, employers are left to make their own decisions – and watch and wait as the test cases set the bar.
So what should you do?
To understand why this might be a headache for your business, let’s discuss your most pressing questions and use those to explore why the issue of mandatory vaccinations in the workplace needs to be approached carefully.
Can you require an employee to be vaccinated?
We recommend you start from the position of ‘no, you can’t’ and use this to build a defensible argument for why you will. Let us explain why…..
Regulators are generally advising that employers can only require employees to be vaccinated if:
- 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]
[Source: Fair Work Ombudsman]
Western Australia in particular:
The Western Australian (WA) Government has also issued public health directions with vaccination requirements for:
- quarantine centre workers
- residential aged care facility workers (from 17 September 2021).
Even with these directions, employers considering implementing mandatory vaccinations, should still assess whether it is ‘lawful’ and ‘reasonably practicable’  for the employee to get vaccinated.
How do you assess your risk and ‘reasonableness’?
Many factors will come into play in determining whether it is lawful and reasonable to require vaccinations, including:
- the nature of the workplace and the work employees are performing (e.g. do employees work with vulnerable people)?
- risk of covid transmission (e.g. is the business located in an area where there is higher risk of transmission in the community)?
- effectiveness of the vaccine
- employees’ individual circumstances (e.g. do they have medical reason preventing them from getting the vaccine)?
- what practices, policies and procedures are in place within the business (e.g. does the business have an infection control policy which covers mandatory vaccinations and is it ‘standard practice’ and ‘already expected’ for employees to be vaccinated for other diseases)?
- Workplace health and safety obligations (visit the Safe Work Australia link at the end of this article for much greater detail on this important consideration).
Assess your risk using 4 Tiers
The Fair Work Ombudsman has helpfully outlined 4 tiers in assessing risk level and reasonableness of requiring a vaccine in your workplace.
- 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).
For Tiers 1 – 2, an employer requiring an employee to get vaccinated will be more likely to be reasonable compared to Tier 3 (which may be considered reasonable depending of level of community transmission in that area).
Tier 4 work is unlikely to be considered reasonable (but you will have common-sensed that by now).
What should you do next?
To determine the level of risk Covid-19 poses within the workplace and to justify mandatory vaccines, it may be useful to consider:
- Undertaking a risk assessment outlining the likelihood Covid-19 could transmit within the workplace and the level of impact this may have
- As part of the risk assessment, consider other measures to reduce the risks associated with catching and passing on COVID, (e.g. can employees work from home? Can client contact be reduced? Is social distancing possible)?
- Reviewing and/or implementing an Infection control procedure which includes vaccination requirements
- Assessing whether an existing policy or employee contract covers mandatory vaccinations (even if these are in place, SEEK ADVICE on a case-by-case basis)
- Confirming if vaccinations have been mandated by a government health authority or other bodies (e.g. the State Health Department or NDIS) for your industry
- Consult with employees regarding any concerns they may have over the vaccine before resorting to mandatory vaccinations, and whether they have any alternative suggestions to reduce risk of Covid-19 in the workplace. The genuine act of talking to your people and creating awareness and the desire for change is part of good change management.
- Consider whether measures could be put in place to encourage and incentivise employees to get the vaccine (e.g. offer some form of recognition for employees getting the vaccine and/or arrange for a vaccination clinic to be set up within the workplace).
This thorough approach to your risk assessment will support any efforts to demonstrate that mandatory vaccinations will be deemed lawful and reasonable…
…noting again that is not a guarantee, so please seek advice each time.
Employees refusing to get vaccinated?
Just as with an employer, whether it is reasonable for an employee to refuse a mandatory vaccination will depend on many factors including whether:
- they have medical reasons for their refusal. If medical reasons are cited, can they provide evidence from a medical practitioner to support this?
- they have agreed to vaccinations in their contract
- whether they have previously agreed to other vaccinations and if its standard practice, normal and expected in the business for employees to get vaccinated
- whether the employee was consulted about their concerns
- if a public health order/legislation requires them to get the vaccine
TIP: Do not rely on just one of these factors alone and always seek advice before acting on a ‘lawful instruction’ to attend work.
Where to find more information.
We realise this is a very complex area (we’re dealing with humans of course) so we’ve taken the time to source some important starting points directly into the regulators and government advisory services and their advice.
Thanks for reading and if you still have questions after reading this article, reach out to one of the team at Quantum Hr and we’ll happily provide some further and no obligation thoughts or two to consider.
This Article was last updated on 17-08-21
 To throw some oil onto this fire, and referencing WHS legislation particularly, in their website as at 16-08-21, Safe Work Australia have gone on record as saying it is ‘unlikely that a requirement for workers to be vaccinated will be reasonably practicable’.