On 13 August 2021, the Fair Work Ombudsman (FWO) updated its information for employers on COVID-19 vaccinations: workplace rights & obligations with new guidance on mandating COVID-19 workforce vaccinations.
“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.” - FWO
For a vaccination direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law or public health order that applies.
From 17 September 2021, COVID-19 vaccination will be mandatory for residential aged care workers. Read more >
State and territory governments have made and may continue to make public health orders requiring workers to be vaccinated against COVID-19 in their state or territory. Learn more > Employers and workers must comply with any public health orders that apply to them.
When undertaking a case-by-case assessment on whether you can reasonably mandate the COVID-19 vaccine for your workforce, the FWO advises that there are a range of relevant factors to consider.
The FWO has also now created four broad tier levels to help guide employers on assessing the risk level of their working environments, as a gauge of whether it may be “more reasonable” or “less reasonable” to direct employees to be vaccinated against COVID-19.
Relevant factors to consider:
the nature of each workplace (e.g., taking into consideration public facing roles, the provision of essential services, options for social distancing, etc.)
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
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)
4 broad work 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 (e.g., 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 (e.g., 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 (e.g., workplaces providing essential goods and services).
Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (e.g., working from home).
It is important to note that a workplace may have a mix of employees performing work in different tiers. This needs to be considered during your self-assessment.
Health care, aged care and disability care all fall under the category of Tier 2 work. This is because of the increased risk of employees being infected with COVID-19, or giving COVID-19 to a person who is particularly vulnerable to the health impacts of coronavirus. It is more likely to be reasonable for healthcare, aged care and disability care providers to mandate COVID-19 vaccinations for their client-facing or on-site workers.
COVID-19 vaccination is mandatory for all residential aged care workers (public and private) from 17 September 2021. Read more > This includes:
● anyone employed or engaged by a residential aged care facility who works on-site in a facility, such as:
👉direct care workforce (nurses, personal care workers, allied health professionals, and allied health assistants)
👉administration staff (reception, management, administration)
👉ancillary staff (food preparation, cleaning, laundry, garden, maintenance)
👉lifestyle / social care (music/art therapy)
👉transport drivers collecting residents from residential aged care facilities for outings
● volunteers engaged by the residential aged care facility
● students on placement
● medical practitioners, such as general practitioners and consulting specialists, who attend and provide care to residents.
It is worth noting that all residential aged care and disability care workers are now prioritised to receive the Pfizer vaccine, regardless of age (they can also choose to receive the AstraZeneca vaccine if suitable). This includes contractors and volunteers engaged by residential aged care facilities, allied health professionals who provide on-site services, and students on placement in aged care facilities.
Allied health services can take place in a variety of workplace settings which may fall under the category of Tier 2 or 3 work. Private practice owners and independent contractors need to consider their working environments and assess whether a vaccination mandate is reasonable. Allied health practitioners who are employees will need to comply with any lawful and reasonable directions by their employers.
Community services and not-for-profit organisations also conduct work in a variety of workplace settings which may fall under the category of Tier 2, 3 or 4 work.
For employees performing Tier 3 work, a direction to employees to receive a vaccination is more likely to be reasonable where community transmission of COVID-19 is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown.
An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of COVID-19 transmission.
Each employer should carefully consider the relevant factors and implications and seek tailored HR/legal advice if they are considering making COVID-19 vaccinations mandatory in their workplace. Employers also need to provide regular and clear communications to their employees, listen carefully to any staff concerns, and know your legal rights and obligations.
“Regardless of the tier or tiers which may apply to work performed by employees, the question of whether a direction is reasonable will always be fact dependent and needs to be assessed on a case-by-case basis. This will require taking into account all relevant factors applicable to the workplace, the employees and the nature of the work that they perform. Employers should get their own legal advice if they’re considering making coronavirus vaccinations mandatory in their workplace.” - FWO
Mandating COID-19 vaccinations in your workplace brings a range of HR considerations including workplace policies, recruitment and onboarding, employment agreements, recording-keeping and privacy.
It is important to keep checking the FWO website for the most updated employment advice regarding COVID-19.
WorkPlacePLUS can help you navigate the new territory of mandatory COVID-19 vaccinations in your workplace. For more information or tailored advice, please contact us today.