The Fair Work Ombudsman (FWO) has revised its guidance on COVID-19 vaccinations in the workplace, providing new information to assist employers and workers in determining their approach to vaccination.

The FWO said employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable will be fact dependent and needs to be assessed on a case-by-case basis.

For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).

Employers are being encouraged to classify the work done by their staff into four broad tiers:

• 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).

“The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus,” the FWO says.

“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.”

“An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.”

The new information comes as a virtual roundtable discussion with around 50 leaders from unions, employer groups and government met to discuss how best to support the vaccination rollout in workplaces.

Minister for Industrial Relations, Michaelia Cash, said the meeting addressed concerns about how workplaces can and should approach COVID-19 vaccination policies and support the vaccine rollout more broadly.

“It was a positive meeting and really pleasing to see employer groups and unions come together in the spirit of co-operation,” Cash said. “It was clear from the discussion that participants are united in the goal to have as many Australians as possible vaccinated against COVID-19.”

Cash reiterated the Federal Government’s position that vaccination is free and voluntary, unless a state or territory public health order is in place.

“The Australian Government’s position of voluntary vaccination does not detract from individual employers seeking their own advice and mandating for their workforce if they have assessed that it is the right decision for them.”

At the roundtable meeting, there was strong support for the positive role businesses and unions can play in supporting workers to get vaccinated. Participants agreed to work together to develop a work plan, in consultation with all relevant sectors.

The Prime Minister also recently announced on August 13 that the Commonwealth, state and territory work, health and safety regulators would consider a Statement of Regulatory Intent.

The Statement would make clear that businesses not subject to public health orders are not in breach of their work health and safety duties if they do not mandate vaccination. Businesses must still ensure they have a safe system of work in place in relation to COVID-19.

The Government continued to encourage employers and employees to work together when it comes to COVID-19 vaccination.

“Cooperation is critical and all businesses are encouraged, no matter what vaccination policy they are considering, to consult closely with their workers about managing the risk of COVID-19 in the workplace.”

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