Mandatory COVID Vaccinations in the Workplace
The Fair Work Ombudsman Now Provides Some Further Guidance
By Greg Arnold, Director & Principal Consultant
16th August, 2021
In recent weeks we have received increased enquiries from our clients about mandatory COVID vaccinations in the workplace for all of their employees.
This is a very vexed question with so many legal factors in play. The SPC decision to make vaccinations mandatory for its staff and visitors seems to be driving renewed enthusiasm for employers to make it compulsory for staff to be vaccinated.
In light of this very perplexing area of employment law the Fair Work Ombudsman (FWO) has provided a 4-tier guide for employers who are considering making the COVID vaccination compulsory. The FWO states:
“When undertaking this case-by-case assessment, it may also be helpful as a general guide to divide work into 4 broad 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).
A workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time.”
To provide further clarification the FWO states:
“An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus”
“An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable…..”
For employees performing Tier 3 work, “where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable”, however “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.”
Whilst the FWO has provided the above guidance, if employers are considering such a move or looking at incentivising vaccinations there are other relevant legal considerations and we strongly suggest you contact us to seek advice so that we can provide you with advice around those considerations.