Understandably, many Australian employers are confused about what they can and can’t do when it comes to requiring employees to be vaccinated against COVID-19 or taking other measures, such as requiring employees to wear masks in the workplace. Robust workplace protections for employees means that most Australian employers are conflicted between respecting workplace rights and meeting their WHS obligations and do not have the same flexibility as do employers in various overseas jurisdictions.
For some sectors, such as the residential aged care sector, government mandated vaccinations for workers takes the decision to require those workers to be vaccinated out of employers’ hands and places them on much firmer ground when implementing vaccination policies. This has been the case in Queensland for some time in relation to the flu vaccine.
However, for the vast majority of Australian workplaces, that is not the case. Instead, employers are required to consider whether the mandating of vaccinations constitutes a “lawful and reasonable direction” to its employees. In its guidance given in relation to workplace rights and obligations and COVID-19 vaccinations (updated on 12 August 2021), the Fair Work Ombudsman (FWO) confirms this to be the case and that there are a range of factors to be considered when determining if the direction is reasonable. These include:
- 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;
- work health and safety obligations (see below);
- 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.
The FWO’s guidance goes on to provide that when undertaking this assessment, dividing work into the following 4 “broad tiers” may be helpful:
- 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); and
- 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).
Although qualified with the warning that reasonableness of a direction to have a COVID-19 vaccination is to be assessed on a case-by-case basis, the FWO has indicated that for workers undertaking Tiers 1 and 2 work, mandatory vaccination is more likely to be reasonable whereas a similar direction for Tier 4 work is unlikely to be reasonable. In relation to Tier 3 work, the FWO has indicated that:
- where no community transmission 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; and
- where community transmission 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.
Importantly, before implementing any mandatory vaccination policy, employers should remember that not all of their employees will fit into the same tier and that within each tier, there will be employees who may have valid reasons for refusing the jab. Employers should also remember to consider whether they have an obligation to consult with employees regarding the implementation of such a policy under any applicable modern award, enterprise agreement or employment contract. Best practice dictates that consultation in this situation should be undertaken regardless of any obligation to do so.
Employers should also keep at the forefront of decision-making, their obligations under the Work Health and Safety Act 2011. This includes an obligation to do all that is reasonably practicable to eliminate or minimise the risk of exposure to COVID-19 in the workplace. Safe Work Australia advises that, to meet these obligations, employers must also implement control measures such as social/physical distancing, encouraging good hygiene practices and undertaking regular cleaning.
In determining which employees will be exempt from any mandatory vaccination policy (and, indeed, taking any disciplinary action in response to a breach of the policy), employers will also need to be mindful of unlawful discrimination (although there is a general exemption from liability where a measure is “reasonably necessary” to protect the health and safety of people in the workplace) so again, the somewhat rubbery concept of reasonableness comes into play.
In the absence of a public health direction requiring employees to wear masks, employers will also need to consider whether a direction to wear a mask at work meets the “reasonable and lawful direction” test. However, given that wearing a mask is not as intrusive on employees as is having a vaccination, the range of circumstances in which such a direction is not a reasonable and lawful direction is likely to be much narrower. Again, considerations of obligations (of employers, employees and others who enter workplaces) under WHS and anti-discrimination laws must also play a part in any decision to mandate mask-use in the workplace.
Unfortunately, for most employers, decisions to direct employees to get vaccinated or wear masks directions are lawful leaves them vulnerable to claims. One high-profile example is SPC who took the robust decision to require its employees to be vaccinated, despite its employees likely only undertaking Tier 3 work.
In the absence of a clear and legislative-based way forward, it seems that this issue will ultimately fall to the courts to decide. Given that the wheels of the judicial process tend to grind slowly, it is unlikely that we will see a swift or determinative resolution of this issue for some time.
 Although that decision was made in reliance on the company’s WHS obligations and made prior to the FWO’s 4 tiered guidance was issued.