In an attempt to provide some clarity to employers, on 12 August 2021 the Fair Work Ombudsman issued updated guidance on workplace rights and obligations in relation to COVID-19 vaccinations.
In the absence of a specific law or public health orders, employers can direct employees to be vaccinated if the direction is lawful and reasonable. This presents a challenge to employers because each case will depend on its own circumstances.
The Ombudsman has confirmed that “[f]or a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).”
As to what is reasonable, various factors may be relevant. The Ombudsman has specifically identified:
- the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service);
- the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community;
- the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant;
- OHS 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 (for example, a medical reason); and
- vaccine availability.
For the purpose of assessing workplace directions, the Ombudsman has adopted the Prime Minister’s four tiers of work types, to be used as a guide:
|
Tier 1 work |
Where employees, as part of their duties, are required 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. |
The Ombudsman says directions to employees in Tier 1 or 2 are more likely to be reasonable, given the increased risks of exposure to infection and vulnerable persons. Tier 4 is at the other end of the spectrum, as exposure is limited.
Tier 3 falls in the middle: when there is no community transmission, a direction is less likely to be reasonable. On the other hand, where there is community transmission and the workplace needs to remain open during a lockdown, the direction is more likely to be reasonable.
The guidance is focussed on the risk of community transmission, not the impacts on the employer’s business. It is intended as a guide only, and employers should seek specific legal advice that is adapted to their particular circumstances.
Read more about employer directions
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