The Fair Work Ombudsman and Safe Work Australia has released updated guidance indicating that "the overwhelming majority of employers should assume that they won't be able to require their employees to be vaccinated against coronavirus", meaning that COVID-19 vaccines will typically be treated in the workplace similarly to annual flu vaccines. Commenting on the latest guidance, which was developed following a series of roundtable meetings with employers and unions, Federal Minister for Industrial Relations, Christian Porter, said that it "reinforces" the Australian Government's broader policy of supporting voluntary vaccination. The position may change if public health orders are made requiring vaccination of workers.
Key takeaways from the latest guidance include:
- It is unlikely, except in limited circumstances, that a requirement for employees to be vaccinated will be considered reasonably practicable in the context of employers' duty under WHS laws to eliminate, or if not possible, minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace.
- Whether an employer can require their employees to be vaccinated will be highly fact dependant, taking into account the particular workplace and each employee's individual circumstances. Some circumstances in which requiring employees to be vaccinated is more likely to be considered reasonable include where employees interact with people with an elevated risk of being infected with COVID-19, where employees have close contact with people who are most vulnerable to the health impacts of being infected with COVID-19, or where employees interact with large numbers of people in the course of their work.
- An employer's vaccination policy should take into account whether employees have a legitimate reason for not being vaccinated (eg. a medical reason), as well as how protections under anti-discrimination laws may apply.
- Employers should ensure compliance with privacy laws if seeking evidence from their employees of whether they have been vaccination or of their reasons for refusing vaccination.
- Employers may be able to take disciplinary action against an employee for refusing to be vaccinated, but only if the employee's refusal is in breach of a law or a clear and repeated lawful and reasonable direction requiring vaccination. Even in such circumstances, employers should tread carefully to ensure that they do not breach protections against unfair dismissal and adverse action.
- Employers may require a prospective employee to be vaccinated before starting work, but should similarly tread carefully to ensure compliance with general protections under the Fair Work Act and anti-discrimination laws.
The latest guidance is also in line with recent comments by NSW Premier Gladys Berejiklian indicating an unwillingness to make vaccination mandatory in NSW, but suggesting instead that employers take the initiative by offering "very strong incentives" for employees to get the vaccine. The form that any such incentives might take will be a matter for each individual organisation, noting it is likely that many employees will be incentivised outside the workplace context to be vaccinated, including in the context of international travel arrangements.
Employers should now be considering the impacts of vaccinations (voluntary or not) on their risk assessment. This is guidance, not law, so what will be relevant is the level of assessed risk to support the reasonableness of any direction. This may change depending on the working environment, level of community risk and work being performed and, as is clear from the above, there is a range of legal considerations in this context. Employers who are considering requiring their employees to be vaccinated should seek legal advice in order to ensure that their vaccination policy complies with all relevant laws, including workplace relations, discrimination and privacy laws. Please get in touch with us if you would like to discuss further.
This article was written by Amanda Lyras and Connie Yan.