Managing risk

Can employers make the COVID-19 jab mandatory?

The Fair Work Ombudsman (FWO) has issued updated COVID-19 jab advice1 and outlined a four-tier system to help businesses determine whether they can consider making the vaccine mandatory for workers.

The FWO is urging caution among employers considering making COVID-19 vaccinations mandatory in their workplace and advising them to get their own legal advice.

The FWO has now outlined a number of factors that could help determine whether a direction to get vaccinated is deemed lawful and reasonable, such as the nature of each workplace, the extent of community transmission, the effectiveness of vaccines, work health and safety obligations, each employee’s circumstances, whether employees have a legitimate reason for not being vaccinated, and vaccine availability.

The four-tier system explained

The FWO explained that an employer’s direction to employees performing tier 1 or tier 2 work is “more likely” to be deemed reasonable, given the nature of work. These tiers cover employees in hotel quarantine or border control and aged care workers.

In tier 3, where there is an interaction between employees and customers such as in essential goods stores, the reasonableness would depend on the circumstances. For example, where no community transmission has occurred for some time, the direction would "most likely" be deemed unlawful.

But in tier 4, which includes employees working from home or those with minimal face-to-face interaction, an employer’s vaccine direction is “unlikely to be reasonable”.

However, the FWO noted that regardless of the tier or tiers which may apply to work performed by employees, the question of whether a direction is reasonable will always be fact-dependent and needs to be assessed on a case-by-case basis.

This will require taking into account all relevant factors applicable to the workplace, the employees and the nature of the work that they perform. Employers should get their own legal advice if they’re considering making COVID-19 vaccinations mandatory in their workplace.

Employers have also been urged to consider their obligations and responsibilities under anti-discrimination laws, which generally prohibit discrimination against employees in the workplace based on protected characteristics, such as disability.

Providing evidence of vaccination

The FWO has now also confirmed that only employers that have enacted a lawful and reasonable vaccine mandate can ask their employee to provide evidence of their vaccination without raising privacy obligations, provided they do not collect this information.

But this requirement must also be “lawful and reasonable”, which could hinge on a number of circumstances.

  1. COVID-19 vaccinations: workplace rights and obligations

This content is not intended to be a substitute for professional medical advice and should not be relied upon as health advice. Always seek the advice and guidance of your doctor or other qualified health professional with any questions you may have regarding your health or a medical condition.

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