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Employer mandated COVID-19 vaccination policies - What must be considered?

COVID-19 vaccinations have been front of mind for many employers over past weeks with some States having introduced Government mandated vaccines for designated groups of workers.

In the absence of a Government issued mandate applying to workers, many employers are considering whether to implement a mandatory vaccination policy.

The Coronavirus pandemic itself does not automatically make it reasonable for employers to direct employees to be vaccinated against the virus. At present, there are three instances where an employer can direct an employee to get vaccinated:

  • A specific law requires an employee to get vaccinated (such as a public health order).
  • There is a requirement to get vaccinated in the employment contract, enterprise agreement or other registered agreement.
  • It is lawful and reasonable for an employer to give their employees a direction to be vaccinated in that particular case.

Where a vaccination for certain roles or industries is mandated by the Government (such as via a public safety order), then this would have the effect of determining that vaccination is an inherent requirement of a role within those specific roles or industries.

Where a Government mandated COVID-19 vaccination does not apply for your workplace, when considering the introduction of a mandatory vaccination policy in your workplace, there is a need to ensure that such a policy is lawful and reasonable. Whether a direction is lawful and reasonable is fact dependent and needs to be assessed on a case-by-case basis taking into consideration a range of issues relevant to your particular workplace and industry.

A poll conducted as part of HR Advice Online’s ‘Returning to the Workplace Safely Webinar’ held on October 20th 2021 indicated that 53% of employers are considering implementing an employer mandated vaccination policy.  In such circumstances, there are a range of factors that do need to be taken into consideration when determining whether the implementation of a mandatory vaccination policy would be deemed reasonable. Such factors would include:

  • the nature of the workplace 

i.e..

- The extent to which employees need to work in public facing roles

- Whether social distancing is possible

- 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 terms of any public health orders in place where the workplace is located;
  • work health and safety obligations

- A risk assessment should be undertaken with the outcomes used to identify and consider a range of available actions to minimise potential COVID-19 related risks in the workplace.

- Employers must identify whether there is a risk to the health and safety of their employees from exposure to COVID19 at their workplace.

- Making vaccinations mandatory for employees should sit alongside a range of other controls that you have in place such as appropriate physical distancing, the use of masks, reduced or eliminated sharing of equipment where possible, encouraging use of sanitising and hand washing and QR coding into all locations, all of which are designed to keep your employees safe;  

  • each employee’s circumstances, including their duties and the risks associated with the work that they perform;
  • whether employees have a legitimate reason for not being vaccinated (for example, a medical reason);
  • vaccine availability.

When undertaking the assessment of your workplace, it may also be helpful as a general guide to divide work into 4 broad tiers (as provided by the Fair Work Commission as at 1 October 2021):

  • 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).

A workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time.

An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.

For employees performing Tier 3 work, where no community transmission of coronavirus 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. In comparison, where community transmission of COVID-19 is occurring in the area, and the employer is operating a workplace in that area that needs to remain open to provide essential goods and services, a direction to employees to receive a vaccination is more likely to be reasonable.

An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given there would be a limited risk of transmission of the Coronavirus.

The requirement for vaccination may also be driven by factors outside of your own operations. For example, other businesses may require that their suppliers, customers and visitors be vaccinated. This will have the effect of broadening vaccination being an “inherent requirement”.

It is essential that throughout the risk assessment and decision-making process regarding whether to implement a mandatory vaccination policy, employers comply with their obligations to consult with impacted employees under

- an applicable modern award or industrial instrument.

- the applicable workplace health and safety legislation.

If you require assistance or HR Advice on any matter, please contact the team at HR Advice Online at [email protected] or on 1300 720 004.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors, such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.

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