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In May 2021, we posted an article about mandatory vaccinations in the workplace and whether or not employers could compel employees to have the COVID19 vaccine.

Since posting that article, the States and Territories have endured a number of lock downs devastating a number of industries and businesses. Of course the issue of mandatory vaccination is raising its head yet again as a result.

What has changed since May 2021?

Here’s a summary:

  • Scott Morrison has confirmed the Federal Government will not make the vaccine mandatory for employees.
  • The New South Wales Government has made it mandatory for any person in the affected LGAs entering a construction site to have had two doses of the COVID19 vaccine or at least one dose (recently) or present evidence of medical exemptions and a negative COVID19 test which is no later than 72 hours before entering the site.
  • The Queensland Government has announced that any essential workers wishing to cross the Queensland border to another State or Territory must have had at least one COVID19 vaccine dose (by the end of this week – 21 August 2021).
  • The Queensland Government has expanded the requirement for mandatory vaccination for Queensland Health employees working in residential aged care facilities to Ambulance service employees, health service employees and hospital and health service contractors.

In these circumstances, an employer may require any employee to not attend work unless vaccinated (or without the first dose administered as the case may be). But this is a separate issue from an employer requiring its employees to be vaccinated when it is hamstrung by the question of whether is it reasonable to insist employees are vaccinated.

Employees may still refuse the vaccine – what then?

On Thursday, 12 August 2021, the Fair Work Ombudsman (FWO) issued advice to employers confirming the an employer can only require employees to be vaccinated if it is reasonable to do so. As identified in our May 2021 article, reasonableness will depend on factors such as the industry in which the employer operates, the specific roles the employer wishes to mandate vaccinations for, the risks to the employee weighed against the risks to customers of the employer (in particular, do those customers have any special vulnerability to COVID or the flu) and other workers and any reason for refusing the vaccine, should be considered.

The FWO identified four tiers of employees and commented on the reasonableness of requiring vaccinations for those tiers. In summary:

  • Tier 1 workers – 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 – 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 – employees have interaction or likely have interaction with other 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 – employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

In these examples, the FWO confirmed it is more likely to be reasonable to require Tier One and Two employees to have the vaccine. For Tier Three employees, it may be possible to require vaccination but only if there is community transmission (as is the case in NSW and Victoria at the time of this article).
For Tier Four employees however, it is unlikely to be considered reasonable to mandate vaccinations for this class of employee.

Despite the advice from the FWO, employers still need to carefully consider mandating the vaccine even if their employees fall within the Tier One and Tier Two categories. Employers need to establish the reasonableness of the decision to direct employees to have the vaccine, particularly if any termination of employment will arise due to a failure to be vaccinated.

If you have concerns about whether or not you can require your employees to be vaccinated against COVID19, we’re happy to stress test your reasoning on the issue. Book a time to chat with us.

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