COVID-19 vaccination: booster shot advice may affect employer vaccination policies, but no one-size-fits-all solution

By Hedy Cray, Laura Forman and Jeremy McCall-Horn
17 Feb 2022
For employers who have also relied on the ATAGI guidance for guidance on control measures (in the absence of public health direction or mandate that requires vaccination) it is a timely reminder to consider whether your policies are still fit-for-purpose.

Are you "up-to-date" with your vaccinations?

The Australian Technical Advisory Group on Immunisation (ATAGI) has updated its recommendations in relation to COVID-19 vaccinations and what is now considered "up to date". Being "up to date" may impact on attending certain premises and worksites under the current public health directions that exist in each State and Territory but also on the control measures relied on under some of employer policies and procedures.

The new recommendation states that a person over 16 is only considered "up-to-date" with their COVID-19 vaccinations if they have had booster shots within the recommended time-frame. Full details can be found in the official recommendation. For most people eligibility for their booster will now commence from 3 months after their primary dose with booster vaccination to be completed before 6 months has passed.

For employers relying on the guidance from ATAGI to determine their risk control measures, where public health directions or mandates do not require vaccination, now is a good time to consider whether your policies and control measures are fit for purpose.

What this means for employer mandatory vaccination policies

It is not yet clear how each State and Territory may respond to the updated guidance. Several States and Territories have relied on the ATAGI guidance to support public health directions including in relation to access to certain venues, attending at work (in Victoria), and for work in certain industries including health and aged care. Some have forecast that they will likely review their health directions and mandates towards the end of February 2022. While this may impact on communities as a whole, employers will need to consider the impact for their workplaces.

For employers who have also relied on the ATAGI guidance for guidance on control measures (in the absence of public health direction or mandate that requires vaccination) it is a timely reminder to consider whether your policies are still fit-for-purpose, or whether they need to be reviewed and updated to take into account these new changes given the narrowing of time to complete a booster shot to be "up to date".

In summary, employers should be considering the following points:

  • an employer's ability to require employees to have received a booster shot will depend on the wording of their policy;
  • where a policy is clear in its wording, or defines "fully vaccinated" in accordance with the terminology used previously by the ATAGI guidance, the policy may not be sufficient for employers to rely on to require employees to receive a booster vaccination;
  • employers may need to review and update their policy if they are considering imposing booster vaccine mandates which fall outside of the wording of their current policy; and
  • any action by employers will need to be assessed against the rules of the relevant State or Territory, including those for particular sectors or industries.

While this may be a wording change, there are also practical, logistics and timing consequences of narrowing a window for the booster vaccination and how this may impact on your particular workforce and control measures being relied on.

With the change in the timeframe, if updates are required to mandatory vaccination policies, employers will need to ensure that their policy updates are reasonable, including by being clear upon the basis that the policy is being updated and ensuring that they understand and meet all their consultation obligations. The scope and requirements of those obligations will depend on the express terms of the legal instrument which provides for the consultation. At the very least, in accordance with the recent Full Bench decision regarding BHP, the duty to consult under model work health and safety legislation generally requires that consultation:

  • occurs prior to making a decision to implement;
  • must be more than a formal or perfunctory exercise;
  • must give employees a real opportunity to provide opinions, information and the opportunity to impact upon both the decision and implementation.

Get in touch

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.