In a typical legal response, the answer is yes, and no, and it depends!
n Australia vaccination for COVID-19 (COVID Vaccine) is encouraged, however, voluntary.Four states (New South Wales, Queensland, Western Australia and South Australia) have imposed public health orders requiring certain types of workers to get the vaccine, including those working in quarantine, transportation, airport, health services and aged care. Earlier this year the Fair Work Commission (FWC) in two separate cases, upheld the termination of a child care worker and and an aged care worker for refusing the employer directive to receive influenza vaccines.
On 12 August 2021, the Fair Work Ombudsman (FWO) provided an update regarding the COVID Vaccine, which allows more scope to make such vaccinations mandatory for employees.
The FWC have recommended that:
• employers and employees should take a collaborative approach to mandated vaccinations;
• in some cases employers may be able to require their employees to receive the COVID Vaccine and other vaccines, such as the nfluenza vaccine;
• a list of relevant factors to be considered when determining whether a direction to receive vaccinations is reasonable (which must be assessed on a case-by-case basis); and
• four broad tiers of work be defined, with a general guide as to whether a direction to receive the COVID Vaccine would be reasonable in each tier
Employers can only direct employees to receive the COVID Vaccine if the directive complies with any Commonwealth, State or Territory law that applies (for example, an anti-discrimination law), and:
1. it is a legal requirement that the employee be vaccinated to perform their role; or
2. it is required under the employee’s enterprise agreement or employment agreement; or
3. the employer can establish that being vaccinated is a reasonable direction in the circumstances of
the particular employment.
If one of the above circumstances has been met and an employee refuses to receive the COVID Vaccine, this may prove sufficient grounds for disciplinary action. Before taking such action we recommend you consider the employee’s reasons/grounds for the refusal and seek specific legal advice
There are currently a number of State Government orders requiring certain workers to receive the COVID Vaccine, whilst the Federal Government has also announced that all residential aged care workers must have their first dose of the COVID Vaccine by 17
September 2021.
An employer may require its employees who are subject to such orders to obtain the COVID Vaccine prior to commencing or continuing to perform their role. This is on the basis that obtaining the COVID Vaccine is an inherent requirement of the employee’s position
as without the vaccination the employee cannot lawfully perform their role.
Most enterprise and employment agreements do not contain such clauses, however, if you are currently thinking of implementing such agreements, we advise seeking legal advice on whether such a directive would be reasonable taking into consideration the factors
listed below.
If a Government order does not apply and a current enterprise or employment agreement does not contain such a clause, you can direct your employees to receive the COVID Vaccine if you can establish that it is a reasonable direction. Whether a direction is reasonable will vary in different circumstances and will depend on a number of factors. The FWO guidance provides that the following factors should be taken into consideration when determining a reasonable direction:
• the nature of the 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 the COVID Vaccine in reducing the risk of transmission or serious illness, including the Delta variant;
• work health and safety obligations, including the responsibility to provide a safe working enviornment;
• each employee’s circumstances, including their duties and the risks associated with their work;
• whether employees have a legitimate reason for not receiving the COVID Vaccine (for example, an established medical reason); and
• availability of the COVID Vaccine. The FWO also provided guidance on the types of work, ranging from likely to be reasonable, to
unreasonable, in determining a reasonable direction:
1. Tier 1 – LIKELY TO BE REASONABLE: where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (for example, employees working in hotel quarantine or border control).
2. Tier 2 – LIKELY TO BE REASONABLE: where employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 (for example, employees working in health care or aged care).
3. Tier 3 – MAY BE REASONABLE IN CERTAIN CIRCUMSTANCES: 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).
4. Tier 4 – LIKELY TO BE UNREASONABLE: where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
If you cannot direct employees to receive the COVID Vaccine, you can still encourage your employees by providing information about the COVID Vaccine and offer incentives to be vaccinated
If you are considering implementing mandatory vaccination, we recommend you:
• obtain specific legal advice;
• conduct a thorough risk assessment regarding the risks of continuing to perform the role/s without staff receiving the COVID Vaccine (and any other relevant vaccines);
• consult with employees and any relevant unions prior to implementing the requirement (noting that most modern awards contain such a requirement);
• prepare and implement a clear policy and procedure regarding the requirement (including provisions of if employees will be offered paid time off during and after receiving a vaccination, vaccination incentives, and reimbursement for any fees asssociated with being vaccinated ie to cover the costs of a consultation with a General Practitioner); and
• consider the process to address any employees who have a legitimate reason not to receive the
the COVID Vaccine, such as medical or religious grounds, to ensure those who have genuine ground for refusing the COVID Vaccine are
treated lawfully and with compassion.
The FWC have stated that they will continue to review
and update their information regularly as the COVID-19 pandemic evolves and the vaccination rollout continues across Australia. Should you require further information or assistance, please don’t hesitate to speak with Saasha Greeney, who can assist you in
making sense of the mayhem !