Fair Work Ombudsman advice on COVID-19 vaccinations

COVID-19 continues to present significant challenges for business and the community, and Governments have made it clear that being vaccinated is the best way for Australians to return to a normal way of life. Businesses are wondering how to manage vaccinations in the workplace, and whether the vaccine should be mandatory for their workers.

The Fair Work Ombudsman (FWO) has issued advice on workplace rights and obligations relating to COVID-19 vaccinations, including the circumstances in which it may be “lawful and reasonable” for an employer to direct an employee to have a vaccination.

The advice available on the FWO’s website covers topics which include:

Managing vaccinations in the workplace

• Does an employer need to consult when implementing a workplace policy about coronavirus vaccinations?
• Do employees have to be paid for the time to get vaccinated against COVID-19?
• Can an employee take sick leave to get vaccinated against COVID-19?
• Can employees take paid time off if they feel unwell after being vaccinated?
• Can an employee refuse to attend the workplace because a co-worker isn’t vaccinated against coronavirus?

Requiring employees to be vaccinated

• Can an employer require an employee to be vaccinated?
• Lawful and reasonable directions to get vaccinated
• Can an employer require a prospective employee to be vaccinated before starting work?
• How does a requirement to be vaccinated interact with anti-discrimination laws?

Providing evidence of vaccination

• Can an employer require an employee to provide evidence that they have been vaccinated?
• What counts as proof of vaccination?

Mandating COVID-19 vaccinations

If a Public Health Order (PHO) is in place which requires a person to be vaccinated, then employers and employees will need to comply. At this stage, PHOs mandating vaccinations only apply in very limited circumstances (e.g. some parts of the quarantine and aged care sectors).

If a relevant PHO does not mandate COVID-19 vaccinations for a particular type of employee, an employer who wishes to mandate vaccinations for those employees will need to direct each individual employee.

The directions need to be “lawful and reasonable” in the circumstances of the business and the employee. For example, if the employee has a genuine medical condition preventing vaccination then it will not be reasonable to require the employee to be vaccinated.

Factors to consider in determining if a direction to be vaccinated is reasonable

The FWO’s advice includes the following factors that employers should consider when determining whether a direction to an employee to have a COVID-19 vaccination is reasonable:

• The nature of each workplace (e.g. 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;
• Each employee’s circumstances, including their duties and the risks associated with their work;
• Whether employees have a legitimate reason for not being vaccinated (e.g. a medical reason); and
• Vaccine availability.

The four tiers

The FWO has put forward four broad tiers as a general guide when assessing whether it may be reasonable for an employer to direct its employees to have a COVID-19 vaccination:

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).

Promotion of COVID-19 vaccinations by employers

The Commonwealth Department of Health has produced a COVID-19 Vaccination Business Kit designed to assist businesses to promote COVID-19 vaccinations to their employees. Ai Group was involved in the Government’s consultation process during the development of the Kit and we have expressed strong support for this Government initiative.

The Kit includes campaign key messages and links to materials, including posters, website content, signature blocks, social media content, images, newsletter content, videos and radio files.

Also included in the Kit is information on how businesses may offer rewards to vaccinated staff and customers.