COVID-19 Vaccinations: Workplace Rights and Obligations – Fair Work Update August 2021

By Alan J. McDonald

As Australia’s vaccination rollout continues to gain momentum, employers and employees are encouraged to work together to find solutions that suit their individual needs and workplace.

Employers who wish to enact a significant workplace change must consult with their employees and representatives in accordance with any relevant award or enterprise agreement. Additionally, under work health and safety laws, employers are required to consult with health and safety representatives (HSRs) about workplace risk management. Employers must provide employees and representatives with reasonable time to respond to any proposed changes and consider any objections before passing a final decision.

If, after following these processes, an employer mandates employee vaccination against COVID-19, the employer should cover travel costs and provide employees with time off work without loss of pay if an appointment is during the workday. In circumstances where vaccination is not required but encouraged, employers can still discuss work adjustments, leave arrangements or incentives to support employee vaccination.

Some employment contracts may already contain vaccine-related clauses, including concerning the COVID-19 vaccination. If your employment contract contains a clause specifically regarding flu vaccinations, these are not inherently applicable to the COVID-19 vaccination. Employees who are unsure about what applies to them should check their employment contracts. Employers can add a vaccine requirement clause into employment contracts, provided it is not contrary to any anti-discrimination laws.

It is lawful for an employer to require employees to receive a vaccination where:

A specific law (such as a state or territory public health order) requires an employee to be vaccinated. For example, states and territories have recently issued public health orders mandating COVID-19 vaccination for certain residential aged care facility workers, early education facility workers, disability support workers, health care workers, hospital and health service contractors, quarantine workers, transportation workers, airport workers, and other essential workers and travellers. Refer to the public health orders of your respective state or territory for more information;
the requirement is permitted by an enterprise agreement, other registered agreement, or employment contract; or
It would be lawful and reasonable for an employer to direct its employees to be vaccinated, as assessed on a case-by-case basis.

An employer can issue a direction to employees requiring them to get vaccinated if the direction is lawful and reasonable. Factors that are relevant to the reasonableness of the direction include the nature of the workplace (e.g., the proximity of interactions between personnel, the extent of public exposure), risk of COVID-19 spreading in the area of work, vaccine effectiveness, and individual employee circumstances.

Some Australian businesses have publicly discussed mandatory vaccination against COVID-19 in their workplaces. National carrier Qantas recently announced all frontline employees – including cabin crew, pilots, and airport workers – will need to be fully vaccinated by mid-November 2021, except for those who are unable to be vaccinated for documented medical reasons. The announcement occurred at the conclusion of a thorough consultation process, which involved sending a survey to 22,000 Qantas and Jetstar employees seeking their views on mandatory vaccination. Their results indicated that approximately three-quarters of those surveyed believe all employees should be required to be vaccinated and would be concerned about attending work if their colleagues were not vaccinated.

The Fair Work update on 12 August 2021 indicates there are broadly four tiers of employment that workplaces can be broken into:

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 an interaction or likely interaction between employees and other people such as customers, other employees, or the public in the regular 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 regular employment duties (for example, people working from home).

Orders requiring vaccination from tier 1 or 2 employees are likely to be reasonable, compared to orders requiring vaccination from tier 4, which are likely unreasonable.

For employees performing tier 3 work in locations where no community transmission of coronavirus has occurred for some time a direction to employees to be vaccinated is, in most cases, not likely to be reasonable. It is more likely for a vaccination mandate to be reasonable for tier 3 workers where an employer is operating a workplace that needs to remain open despite a lockdown in an area where community transmission of coronavirus is occurring.

Refusal to follow this direction can be dealt with in the same manner as refusal to follow any other reasonable and lawful direction. If an employer has provided a lawful and reasonable direction to be vaccinated and an employee refuses, the employer can ask the employee to provide evidence of the reason for their refusal. Employers can only collect evidence of vaccination in limited circumstances.

If you are looking for further clarification, head to https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations