The Fair Work Ombudsman (FWO) has provided updated guidance on COVID-19 vaccinations in the workplace (Guidance). The Guidance provides employers with further tools and factors to consider, to assist employers who are developing policies on vaccinations and assessing whether it will be considered ‘lawful and reasonable’ for them to issue a direction for employees to get vaccinated.

What is the current position on an employer’s power to direct an employee to have a COVID-19 vaccination?

• The Guidance provides employers with further information and factors to consider when developing vaccination policies and/or giving a direction to employees.
• The Guidance is not mandatory and employers may wish to see how vaccination disputes are tested in courts and what approach health and safety regulators take before implementing a policy.
• Employers will need to consider the Guidance in their context of:
  • their employment contracts, awards or agreements
  • their health and safety obligations to eliminate (and only if not possible, to reduce) risks so far as is reasonably practicable taking into account the availability of vaccines, the use of alternative measures such as masks, separation and work location (i.e. outdoor work) and possibly the use of rapid antigen tests in the future
  • the inherent requirements of the relevant role(s)
  • relevant Commonwealth, state or territory laws that apply.
• Employers must also, consistent with their health and safety duties at law, consult with workers about any vaccination policies in place.
• Employers may wish to consider incentivising vaccination in their policies, which has been commended as a useful and practical alternative to a direction.
• Reports in the media from 13 August 2021, indicated the Prime Minister had shared advice with the members of National Cabinet that state and territory health and safety regulators could, if they chose, issue guidance protecting employers from health and safety ‘claims’ where those employers do not enforce mandatory vaccinations. It is presumed this meant enforcement action regarding breaches of health and safety duties. It is not clear if this will occur in any or all jurisdictions. Further, it is likely there would need to be legislative change to provide a blanket exclusion for workers compensation liability if an employee contracts COVID-19 at work.

What does the Guidance say?

In the updated Guidance, the FWO provides some advice on factors that employers should take into account when considering a vaccination policy or direction. These include:

• the nature of your workplace (do your employees work in public facing roles, is social distancing possible, and is the business providing an essential service?)
• extent of community transmission where the workplace is located, risk of transmission amongst employees, customers or members of the community
• 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
• vaccine availability.

Employers need to be cautious in issuing any direction which mandates vaccination. In particular, employers should be wary of introducing a blanket policy or direction, given the need to consider each employee’s role and circumstances as one of the above factors. The Guideline states that the pandemic ‘doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus’.

Four ‘tiers’ of types of work

To assist with an employer’s assessment about whether to direct an employee to be vaccinated, the FWO has divided types of work into four broad tiers:

The Guideline notes that a direction to vaccinate to Tier 1 and Tier 2 workers is likely to be reasonable given the risk of infection or transmission. A direction to Tier 4 workers is unlikely to be reasonable.

For employees performing Tier 3 work, the FWO has advised that:

• where no community transmission of COVID-19 has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable
• where community transmission of COVID-19 is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.

These tiers can be used to help employers make decisions as to whether a direction which mandates vaccinations is appropriate for your workplace.

However, the risk assessment and whether a direction is reasonable is fact dependent, and should be assessed on a case-by-case basis and taking into account the risk at the time. Therefore, employers should remain cautious in issuing a direction and seek legal advice on their specific circumstances. We also recommend that employers issue any vaccination policies as interim, as the position may change once greater community vaccination has occurred and/or if other control measures become available.

Incentives to encourage vaccinations

The Therapeutic Goods Administration, the body responsible for the approval of COVID-19 vaccines, has introduced arrangements that permit Australian businesses to communicate and incentivise COVID-19 vaccines. There are rules regarding how businesses communicate information about the vaccination, but it does mean employers can offer practical support, or rewards to employees or customers to incentivise getting a COVID-19 vaccination.

Encouraging vaccination within your workplace can be a valuable alternative when a direction to get vaccinated is not appropriate. Examples of incentives include discounts, vouchers, tickets, and also support to take days off to get and recover from the vaccine without the employee being required to take personal or annual leave.