Yesterday, 12 August 2021, the Fair Work Ombudsman (FWO) updated their guidance to employers on COVID-19 vaccinations. A ‘collaborative approach’ is recommended to encourage employees to be vaccinated against COVID-19. To support this collaborative approach, employers are encouraged to discuss, plan and facilitate COVID-19 vaccinations, as a key part of Australia’s vaccine rollout. 

The FWO has provided examples for employers, such as providing leave or paid time off to get vaccinated and circulating reliable vaccine information. Employers are also encouraged to explore alternative working arrangements for unvaccinated employees, for example directing unvaccinated employees to perform non-public facing duties or requiring unvaccinated employees to abide by other risk management strategies.  

Employers will need to arm themselves with appropriate information to explore alternative working arrangements, including information as to an employees’ vaccination status. With this information, employers can put appropriate controls in place that help minimise the spread and transmission of COVID-19. This is of particular importance in circumstances where vaccination cannot lawfully be mandated in a workplace.

Directions to vaccinate

The Federal Government will not broadly mandate COVID-19 vaccinations, in workplaces or otherwise. That said, the aim is to have as many Australians vaccinated as possible.

The Prime Minister previously cited that employers have ‘already existing powers…in terms of lawful directions, reasonable directions to their employers’. One of these ‘existing powers’ derives from Work Health and Safety legislation such as the Occupational Health and Safety Act 2004 (Vic). This legislation confirms the duty on behalf of employers to provide a safe working environment for employees, as far as reasonably practicable. In some workplaces, mandating the COVID-19 vaccine may be required to ensure that the workplace is safe, especially in workplace environments conducive to a high risk of infection.

Shepparton-based cannery SPC’s announcement last week that it will mandate the COVID-19 vaccine for all of its onsite staff and visitors may act as a test case for whether COVID-19 vaccines can lawfully be mandated in workplaces that are ‘not on the front line’.

Employers considering a vaccination policy should carefully consider the FWO advice regarding adopting a collaborative approach and the Federal Government’s stance regarding existing employer powers to assist in mandating vaccinations to the extent that it is lawful and reasonable. In workplaces where vaccinations are not already required by law or a public health order, employers may draw upon employment agreements or contracts which include vaccination provisions, or consider whether vaccination of employees is a reasonably practicable measure so as to justify a lawful direction. The specific circumstances of the workplace must be considered, including whether there is a risk of infection as part of the work, the vulnerability of the customers and clients, and whether the mandate would appropriately avoid discrimination of employees with medical and religious exemptions.  As the FWO advice notes, employers contemplating directing their workers to get vaccinated should obtain their own legal advice.

Vaccination exemption

The Federal Government’s discussing of employer powers does not address issues of exceptions or exemption from being vaccinated against COVID-19. The FWO’s advice only goes as far as suggesting employers and employees work together to find solutions that suit their individual needs and workplaces. The lack of authority in this area is likely to cause employers ongoing issues. The balance between making a lawful and reasonable direction and discriminating against employees with reference to medical (and other potentially protected attributes in the circumstances) is difficult to navigate.

Next steps for employers

In summary, employers have a role to play in both limiting the spread and transmission of COVID-19, including with reference to existing Work Health and Safety obligations. The FWO’s guidance and the Federal Government’s messaging on the issue of vaccinations indicates that from the Government’s perspective, employers also have a role in encouraging (and potentially mandating) employees to be vaccinated.

Employers should construct their own strategies and policies as to vaccination in relation to arrangements that are specifically suitable for their workplace in conjunction with tailored legal advice.