The Fair Work Ombudsman released new advice on Thursday, urging caution among employers considering making COVID-19 vaccinations mandatory in their workplace and advising them to “get their own legal advice”.
Prime Minister Scott Morrison has now on several occasions reiterated the government’s vaccine policy, which is that the vaccine will remain “voluntary and free”, amid increasing pressure from businesses for clearer public health orders.
The FWO’s updated advice came as Assistant Minister to the Attorney-General Amanda Stoker confirmed for Sky News that “it needs to be the case that people are making a decision for themselves”.
“The individual has the right to choose what works for them… forcing someone is a different thing altogether and I think that is a clear message,” Ms Stoker said.
As such, 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 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.
“Where community transmission of coronavirus 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,” the FWO said.
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”.
“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,” the FWO said.
“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 coronavirus 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.
