The Fair Work Ombudsman has adopted a new four-tiered approach for mandatory vaccines in Australian workplaces, and moved away from its earlier advice that employers are “overwhelmingly” unable to introduce mandatory vaccinations policies.
While public health orders have been issued in some regions that require those working in health services and quarantine facilities to be vaccinated, the federal government has maintained its position that vaccination will generally be voluntary for Australians.
In updated guidance issued on Thursday evening, the Fair Work Ombudsman set out four tiers of workplaces and their likeliness of being able to mandate vaccines for workers. Workplaces considered to be Tier 1 would be “more likely” to be able to mandate vaccines, while those considered to be Tier 4 would be least likely to be able to require workers to be vaccinated.
Tier 1 applies to workplace where employees interact with people who have an increased risk of COVID-19 infection, such as those working in hotel quarantine and border control settings.
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Work considered to be Tier 2 includes settings where employees are required to have close contact with individuals who are particularly vulnerable to the health effects of the virus, including those working in health or aged care.
Tier 3 covers public-facing work environments, such as stores providing essential goods and services, where employees are likely to interact with members of the public in their normal duties.
Tier 4 applies to work environments where employees have minimal face-to-face interaction with members of the public. This includes work that is completed at home.
The Fair Work Ombudsman says workplace may have a mix of employees working across the different tiers, all of which could change over time.
Despite outlining the four tiers, the Ombudsman has stressed that mandatory vaccination policies must still be “lawful and reasonable” and this would depend on the individual circumstances and be assessed on a case-by-case basis.
As such, the Ombudsman has urged employers to “exercise caution if they’re considering making COVID-19 vaccinations mandatory in their workplace and get their own legal advice”.
“The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus,” the Ombudsman’s advice says.
For a mandatory vaccination direction to be lawful it would need to also comply with relevant employment contracts, awards and agreements, as well as state and federal laws, including anti-discrimination laws.
Employment awards and agreements may require employers to consult with employees prior to introducing a mandatory vaccine policy. Consultation is also likely needed to comply with workplace health and safety rules.
The reasonableness of a direction to employees would need to consider a range of factors, including the nature of the workplace, and if employees work in public-facing roles or can social distance; if there is community transmission of COVID-19 in the area; vaccine availability; work health and safety obligations; and the individual circumstances of each employee.
For work considered to be Tier 3 in particular, the Ombudsman says the reasonableness of a mandatory vaccination order may depend on how recently there has been community transmission of COVID-19 in the area where the workplace is located.
The four tiers set out by the Fair Work Ombudsman are guidance only; so, employers may still encounter legal claims if an employee is disciplined or loses their job for refusing to get vaccinated and then pursues an unfair dismissal claim.
In the event that an employer does introduce a mandatory vaccination policy, the Fair Work Ombudsman says the employer should cover the employee’s travel costs associated with getting the vaccine and give them time off work without loss of pay if their appointment is during work hours.
Further guidance from the Fair Work Ombudsman about vaccines in the workplace is available online here.