This week we are discussing the hottest topic right now – the COVID-19 Vaccination.
With many of our States and Territories in long term, or regular shorter term lockdowns, employers are looking at their obligation to provide a safe workplace, and also at the logistics of continuing to operate profitably in an environment where staff may be absent, or their business may be forced to close down as a result of becoming an exposure site.
So let’s unpack where we stand, as at the 23rd August 2021, when it comes to vaccination and the workplace.
Can I require my employees to be vaccinated against COVID-19?
This is the million dollar question, and until very recently the Fair Work Commission had stated that it would be very unlikely that employers could mandate vaccination of employees, unless under some very specific circumstances.
This rhetoric was in line with the Government’s dialogue, that Vaccinations should be free and voluntary.
But that has all changed in recent weeks, hence the rise in confusion and frustration amongst employers and employees alike.
This has led to the Fair Work Ombudsman releasing a 4 tier system to help employers determine whether they can reasonably direct employees to be vaccinated. This follows the guidance of what is and isn’t a ‘reasonable management direction’ which as you can imagine is very open to interpretation.
What the Fair Work Ombudsman has clearly stated is that there are 3 criteria for determining whether an employer can require an employee to be vaccinated, they are:
- There is a Public Health Order (or other specific law), which requires an employee to be vaccinated;
- The requirement to be vaccinated is permitted by an Enterprise Agreement, other Agreement, or the Employment Contract;
- It would be lawful and reasonable for an employer to give an employee a direction to be vaccinated, which would be assessed on a case by case basis.
When Public Health Orders direct employees to be vaccinated.
In some cases, State or Territory Health Departments may create Public Health Orders which require certain groups of employees to be vaccinated. We are seeing examples of this for some workers in the Residential Aged Care sector, with Northern Territory, Queensland, South Australia, Tasmania and Western Australia all requiring certain Aged Care workers to have received at least their first dose of a vaccine by a specified date.
NSW have been creating various Public Health orders with this requirement as they deal with the current outbreak in Greater Sydney, with these laws including workers in construction, childcare, disability support and various other industries to be vaccinated by specified dates.
Essentially, if there is a Public Health Order in place, this is a law, so if the Public Health Order requires employees to be vaccinated, you as the employer have an obligation to ensure that is the case. In these cases requiring employees to be vaccinated is not only permissible, it’s a legal requirement on your part.
When Agreements or Contracts require vaccination.
We have yet to see this take effect, but the Fair Work Ombudsman has flagged that if an Enterprise Agreement or Employment Contract requires employees to be vaccinated, then in this case employers can mandate vaccination. I expect we will see many Enterprise Agreements, as they are created or renegotiated, start to have this clause included, especially when it comes to workers who are in at risk occupations, or where the spread of COVID could have a detrimental impact on the workplace.
When the direction is ‘reasonable and lawful’.
This criteria is where we really step into the grey area, and this criteria will be assessed on a case by case basis. In this instance, the Commission look at how reasonable the direction to get vaccinated is, under the circumstances, based on the work, location, the individual, the risk, the availability of vaccines and a whole range of other factors.
Common sense tells us that it would be reasonable to direct employees of aged care facilities to get vaccinated,- because we understand the risk. But is it also reasonable to direct your retail employees to be vaccinated? Many would argue absolutely, because they are customer facing. What about your office staff? In my view, if you are considering mandating vaccination under this criteria, I would be seeking expert advice from a lawyer or HR practioner before moving forward to ensure you’re covered.