With the COVID-19 vaccination program being actively rolled out across Australian states and territories, employers, employees and even customers are grappling with the lawfulness of mandating vaccines.

In Australia, the government’s advice is evolving, and currently the COVID-19 vaccine has been mandated for aged care, health and quarantine workers. In New South Wales, constructions workers in nine hot-spot local government areas are also required to be vaccinated against COVID-19 to return to work.

What does this mean for other businesses?

On 6 August 2021, Prime Minister Scott Morrison addressed the concerns surrounding the imposition of a mandatory vaccination program across Australian business stating:

“Decisions to require COVID-19 vaccinations for employees will be a matter for individual business, taking into account their particular circumstances and their obligations under safety, anti-discrimination and privacy laws.”

Safe Work Australia (SWA), the federal workplace health and safety regulator, has provided guidance in light of the roll out of the COVID-19 vaccine stating that “…most employers will not need to make vaccination mandatory to comply with the model WHS laws.”

On 12 August 2021, the Fair Work Ombudsman (FWO) revised its advice on COVID-19 vaccinations and the workplace. The updated advice provides a range of factors which should be considered by employers when determining whether a direction to employees to get vaccinated against COVID-19 is “lawful and reasonable”.

The FWO cautions employers that these factors are to be assessed on a case by case basis and are entirely reliant on the employer’s unique and independent circumstances. As a guide the FWO has also set out a four-tier system to distinguish different groups of workers.

What is a “lawful and reasonable” direction?

As we set out in our earlier article, there are limited circumstances where employers can legally mandate vaccines as any direction must be “lawful and reasonable” (you can read our previous article “No Jab, no Job – Are mandatory vaccinations lawful?here).

The FWO has again confirmed that whether a direction is lawful and reasonable will be fact dependent and assessed on a case by case basis. The factors taken into consideration include:

  • the nature of each workplace;
  • 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; and
  • vaccine availability.

What are the four tiers of work?

The four broad tiers of work, as defined by the FWO, are as follows:

  • Tier 1 work: 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).
  • Tier 2 work: 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).
  • 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 examples, 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).

Certain workplaces may employ a mix of employees that perform work falling into different tiers.

Which workers can be directed to be vaccinated?

The guidance by the FWO provides that a direction to workers within Tiers 1 and 2 to get vaccinated will be more likely to be reasonable given the increased interaction and contact with other people and heightened risk of infection and transmission of COVID-19. On the other hand, a direction to get vaccinated against COVID-19 is unlikely to be reasonable if issued to Tier 4 workers due to the minimal risk of transmission of the virus. For those working within Tier 3 the reasonableness of a direction will depend on whether there has been any community transmission of the virus in the area where the employer operates, and if so, whether the employer is required to stay open despite a lockdown. If those factors are satisfied, a direction to Tier 3 workers is more likely to be reasonable.

Key Takeaways

  • In certain industries employers will be able to mandate the COVID-19 vaccine.
  • A direction to be vaccinated against COVID-19 must be lawful and reasonable.
  • The FWO has released a four-tiered system to guide employers in assessing whether it is lawful and reasonable to mandate vaccines in the workplace.
  • The imposition of mandatory vaccines is more likely to be legal for Tier 1 and Tier 2 workers. For Tier 3 workers, lawfulness and reasonableness will be dependent on whether the workplace is located in an area of high transmission of the virus and for Tier 4 employees it is unlikely that a vaccine mandate will be considered lawful or reasonable.
  • The advice and guidance by SWA and the FWO is not law.
  • Whether employer’s can lawfully and reasonably mandate the vaccine is entirely case dependent and requires an assessment of the relevant factors applicable to the workplace, the employees and the nature of the work that they perform.
  • Employers who are considering making the COVID-19 vaccination mandatory in the workplace should legal advice about their circumstances and obligations.