COVID-19 vaccinations in the workplace – Rights and Obligations
The Fair Work Ombudsman (FWO) recently updated its guidance on rights and obligations concerning COVID-19 vaccinations in the workplace.
The FWO has changed their earlier position that vaccinations could not be mandated in most circumstances and now listed four broad tiers when it would be “lawful and reasonable” for an employer to direct employees to be vaccinated. This decision is giving Employers more powers to issue such directions, without fearing a backlash.
The release of this new information coincides with a roundtable discussion on the 18th of August 2021 with around 50 leaders from unions, employer groups and government officials.
The Minister for Industrial Relations, Michaelia Cash, said the meeting addressed concerns about how workplaces can and should approach COVID-19 vaccination policies and support the vaccine roll out more broadly.
The 4-Tier assessment guide
- 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).
In Broad terms, an employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, whilst employees performing Tier 4 work is unlikely to be reasonable.
The Fairwork Ombudsman emphasised that regardless of the tier or tiers which may apply, the question of whether a direction is reasonable will always be fact dependent and needs to be assessed on a case-by-case basis. This will require taking into account all relevant factors applicable to the workplace, the employees and the nature of the work that they perform.
Minister Cash also reiterated the Australian Government’s position on this by stating “The Australian Government’s position of voluntary vaccination does not detract from individual employers seeking their own advice and mandating for their workforce if they have assessed that it is the right decision for them.”
Advice for Employers
Employers must consider their obligations and responsibilities under an employment contract, award or agreement, and any Commonwealth, state or territory law that applies before issuing a direction for its employees to be vaccinated.
For a direction to be lawful, it also needs to comply with anti-discrimination laws, which generally prohibit discrimination against employees in the workplace based on protected characteristics, including disability.
More information on COVID-19 vaccinations in the workplace is available at:
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