On 4 August 2021 the Shepparton based cannery SPC announced that it would be mandating COVID-19 vaccinations for all of its employees and contractors. On 18 August 2021, the Qantas Group, including Jetstar, followed suit announcing that frontline employees would need to be fully vaccinated by 15 November 2021 and the remainder of their employees by 31 March 2022. These announcements have left many wondering, can employers require employees to be vaccinated?
This question, at this point in time, can only be answered on a case-by-case basis. The Fair Work Ombudsman has provided guidance stating that employers can only require their employees to be vaccinated where:
(a) there is a specific law requiring the vaccination;
(b) the requirement is permitted by an enterprise agreement, other registered agreement or employment contract; or
(c) where it would be lawful and reasonable to give a direction to be vaccinated as assessed on a case-by-case basis.
So far the aged care sector is the first to be subject to a law mandating vaccination. This law will be effective from 17 September 2021 unless an exemption applies. More information for aged care workers can be found here.
For most employers it is likely that the third approach will apply. Accordingly, whether an employer can issue a direction to be vaccinated will depend on whether it is lawful AND reasonable to do so. The Fair Work Ombudsman encourages employers to seek their own legal advice about the legality, but offers more guidance of what is considered reasonable.
The Fair Work Ombudsman has published a four tier guide to divide work:
- 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).
The Fair Work Ombudsman states that a direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable however employees performing Tier 4 work is unlikely to be reasonable. For Tier 3 work, the guidance states that if community transmission has not occurred in the area that the employee works for some time, a requirement to get a vaccinated is less likely to be reasonable. However if community transmission is occurring in an area where an employer is operating a workplace that is open despite a lockdown order being imposed, the requirement to be vaccinated is more likely to be reasonable. The guidance for Tier 3 work is perhaps the most confusing for employers, as the evolving COVID-19 situation means that lockdowns may change overnight, only apply to either certain local government areas or are applicable statewide. Therefore, for an employer contemplating the level of reasonableness based on local transmission and lockdown it is undeniably confusing.
The tier system does provide useful guidance and clarification for employers, however it has created some grey areas, particularly for employers that have employees from more than one tier. It is likely that more information will be released in the coming months as more employers face the difficulties of implementing vaccination directions or mandates.
What about Work Health and Safety obligations?
It is important to note that while employers have a responsibility to manage the risk of COVID-19 in the workplace, Safe Work Australia considers it unlikely that a requirement for workers to be vaccinated will be reasonably practicable and therefore most employers will not be required to mandate vaccination to comply with Work Health and Safety laws. Safe Work Australia has not updated its guidance since the release of the four tier system, it is likely that more information is still to come.
Where to from here?
Employers are encouraged to seek their own legal advice and consider the particulars of their business when carrying out a case-by-case assessment of their workforce. This will include the nature of the workplace, extent of community transmission in the area, employee circumstances and legitimate reasons for employees not to be vaccinated. As the situation continues to evolve we encourage employers to stay up to date with information as it becomes available (some resources are provided below). Please contact us if you are an employer or employee need specific advice relating to COVID-19 vaccine directions and mandates.
This article was last updated at 18 August 2021.