Employers can only mandate employees get vaccinated if a specific law applies, or its relevant enterprise agreement/employment contract permitted the requirement, the Fair Work Ombudsman said in its updated guidance on the matter.
FWO said it could also be required if it was “lawful and reasonable” for an employer to do so, which would be assessed on a case-by-case basis. Considerations on employee protection under anti-discrimination laws also need to be taken into account, it said.
National employer association Ai Group chief executive Innes Willox said it welcomed the clarification.
“We’ve been looking for clarity over the past few weeks from government around who can be vaccinated and under what circumstances in the work context… there is some more certainty for business around what they can do and how they can do it and that is important,” Innox said.
FWO’s update follows SPC’s decision to mandate vaccinations for all its employees, contractors and visitors.
FWO said employers need to exercise caution if they’re considering making COVID-19 vaccinations mandatory in their workplace and get their own legal advice.
It said if an employer wants to mandate vaccinations, it needs to review any applicable reward, agreement, employment contract or existing workplace policy to find out:
- whether they need to consult under that document (as well as needing to consult under work health and safety laws);
- who they need to consult with (including any employee representatives or unions); and
- how they need to consult about the proposed workplace change.
Under work health and safety (WHS) laws, employers also have to consult with employees and their health and safety representatives (HSRs) about possible control measures to address WHS risks. This includes consideration of a new policy about coronavirus vaccinations or changes to an existing vaccination policy.
Employers must also provide employees and their HSRs a reasonable opportunity to express their views about the policy changes. Employers need to take these views into account when making a decision and advise employees and HSRs of their decision.
When examining case-by-case assessments, FWO recommended dividing work into four tiers:
Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (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 coronavirus (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 example, 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).
FWO said it was calling for a collaborative approach to find solutions that suit individual needs and workplaces. “Discussing, planning and facilitating COVID-19 vaccinations is an important part of Australia’s vaccine rollout, because having a vaccine is one of the best ways to protect ourselves and our community against COVID-19,” FWO said.
Employers can support employees by providing leave or paid time off, ensuring up-to-date information about vaccinations, and exploring alternative work arrangements and alternative options for employees not wanting to be vaccinated or who don’t have access to them.
