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Updated guidance from Fair Work Ombudsman on mandatory vaccinations, uncertainty remains.

Last week, the Fair Work Ombudsman updated its guidance on COVID vaccinations in the workplace, including the question of whether employers can make vaccinations mandatory.

The guidance includes both the following phrases: “While the Australian Government’s policy is that receiving a vaccination is free and voluntary, it aims to have as many Australians vaccinated as possible” and later: “In some cases, employers may be able to require their employees to be vaccinated against COVID-19.”

This appears to be a marked shift from its previous position which was that: “In the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus”.

Although the new guidance goes on to to divide employees into four tiers of work, with the first tiers stated to be where it is “more likely to be reasonable” to require vaccinations, the guidance falls short of stating definitively which types of work will make mandatory vaccinations lawful (aside where, of course, there is a public health order that mandates particular workers to be vaccinated).

The guidance therefore is of limited use.

It will be relatively easy for employers to work out which employees fit within which tier, and therefore to determine whether the employer is “more likely” or “less likely” to be able to mandate vaccines in a particular case. But making the ultimate decision about whether a vaccine can be mandated (even if an employer knows it will be “more likely” or “less likely” to be lawful) still leaves employers in an unenviable position of making a difficult call without definitive guidance.

As a result of this ongoing uncertainty, some are calling for the Government to revise its position and state that vaccinations must be voluntary unless a public health order requires mandatory vaccinations for certain types of work. This would give businesses definitive guidance on whether mandatory vaccines were and were not lawful in a particular situation.

We discuss the FWO guidance below, after a brief description of how the law general works in this area.

Mandatory vaccinations and the law

The question of mandatory vaccines involves a number of separate legal principles.

The first is that employers can only require employees to follow “lawful and reasonable” directions.

The second is that employers owe a duty under work and health safety law to protect the health and safety of their employees (and also to protect the health and safety of other persons affected by their work, such as customers and other visitors).

Given the significant interference into an employee’s personal life of requiring an individual to be vaccinated, it will generally only be possible to require this of a current employee where it is determined that it would be necessary to protect the health and safety of the employee (or other persons affected by their work). If such a requirement was not considered lawful or reasonable then this would mean that any adverse action taken against an employee as a result of failing to follow the direction would be unlawful, eg if an employee was dismissed as a result of refusing to be vaccinated.

Anti-discrimination law may also be relevant where an employee does not wish to be vaccinated on grounds of disability, pregnancy or religion (noting that discrimination on the grounds of religion is not unlawful in all States and Territories). However, employers will generally not fall foul of discrimination laws where their actions are reasonable, ie where the need to protect health and safety “trumps” the need to respect an employee’s protected characteristics. In other words, in a situation where it was necessary to have an employee vaccinated to protect health and safety - and the employee could not be vaccinated due to a protected characteristic - it would be unlikely to breach discrimination laws if their employment was ultimately terminated on these grounds.

The issue of requiring prospective employees to be vaccinated is slightly different. Whilst the question of whether a direction to vaccinate is lawful and reasonable clearly arises for an existing employee who did not know when employment started that they would be required to be vaccinated, such an issue would not arise for a job applicant who was told from the outset that being vaccinated was a requirement of the role. Of course, questions of discriminaton law still arise, so if a job applicant was declined employment on the grounds of a refusal to be vaccinated, this could be unlawful if the refusal was due to disability, pregnancy or religion. Again, an employer would be likely to be able to avoid breaching any such laws if they could show that vaccination was necessary on health and safety grounds.

Whether or not an employer could demonstrate the necessity of vaccinations is, of course, the much more difficult question.

Although we are yet to have any court or tribunal decisions on employees refusing a mandate to have a COVID vaccine, the Fair Work Commission has previously dealt with the question of mandatory flu vaccines on a number of occasions. Barber v Goodstart Learning, Kimber v Sapphire Coast Community Aged Care and Glover v Ozcare were all recent cases where the FWC found that a mandatory vaccine policy was lawful. All of these cases, however, involved high risk industries (childcare and aged care) and so are of limited application to employers not operating in such industries.

We now turn to the FWO’s recent guidance, before providing some practical guidance for employers navigating this difficult area.

The Fair Work Ombudsman’s guidance on mandatory vaccinations

As indicated above, the FWO has provided new guidance on the question of mandatory vaccines by dividing employees into four tiers of work, with the first tiers being work where mandatory vaccines are more likely to be lawful.

It is clear from the guidance that the assessment is to be made on a case-by-case basis, meaning that it may well be that mandatory vaccination is possible for some employees in a workplace and not others, depending on the nature of their work and other relevant factors.

We set out the tiers of work below, together with the FWO advice on each tier.

Tier	Description	FWO Advice
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).”	“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.”
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).”	“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.”
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).”	“For employees performing Tier 3 work: where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable where community transmission of coronavirus is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.”
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).”	“An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.”

It is interesting to note that SPC, a food manufacturer who became one of the first employers to go public with their mandatory vaccine policy, would only be in Tier 3.

In assessing the question of mandatory vaccines within these tiers, the FWO recommends that the following criteria is used:

“the nature of each workplace (for example, 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 (find out more at the Department of Health: statement from ATAGI )
work health and safety obligations (find out more at Safe Work Australia )
each employee’s circumstances, including their duties and the risks associated with their work
whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
vaccine availability”

How should the FWO guidance be applied?

It is important to note that the FWO’s guidance is not binding, and still leaves employers in the unenviable position of having to make their own assessment of whether a vaccine can be mandated in any particular circumstance.

In our view, the primary focus that employers should have when carrying out this assessment should be on their WHS duties. As noted above, employers have a duty both to protect the health and safety of their staff (from contracting COVID at work) and the health and safety of other persons affected by their work (from visitors or customers contracting COVID from their employees).

If these risks can be managed without the need for compulsory vaccines (eg by strict policy of mask wearing, cleaning and social distancing) then it is unlikely to be possible to mandate employees to be vaccinated.

Voluntary vaccinations

It is also important to remember that the question of taking action for non-compliance with mandatory vaccines will not arise in a workplace where all employees are happy to be vaccinated.

It may well be the case that in many workplaces, all employees will wish to be vaccinated, regardless of whether or not their employer would require them to be.

One possible approach an employer could consider implementing therefore, is to engage in a process of encouraging and facilitating COVID vaccinations, rather than making this mandatory (letting employees have paid time off for vaccines, etc).

They could also consider canvassing with current (and prospective) employees whether they are happy to disclose their vaccination plans (and vaccination record) to the business.

Employers are allowed to collect such “sensitive information” under the Privacy Act 1988 (Cth) for reasons including if:

an individual consents to this; and
it is reasonably necessary to collect the information for one or more of the employer’s functions or activities.

Employees should also be given a “privacy collection notice” explaining the purpose for which the information will be collected and used. See guidance on collection of vaccine information from the Office of the Australian Information Commissioner here: https://www.oaic.gov.au/privacy/covid-19/covid-19-vaccinations-and-my-privacy-rights-as-an-employee/

Of course, one issue that might arise would be whether collecting this information would be considered to be “reasonably necessary… for one or more of the employer’s functions or activities”. There is no case-law on this specific question in the context of COVID-19 (yet), but in our view, there would likely be strong arguments that collection was necessary for an employer to be able to consider its approach to health and safety in the context of the virus.

If these provisions were complied with and all employees indicated that they are vaccinated (or planning to be so), it may well be that an employer does not need to ever grapple with the difficult question of mandating vaccines.

For any employees (or prospective employees) who indicated that they do not wish to be vaccinated, the employer would then need to explore the reasons for this and how this could be managed, eg:

Is their objection on grounds which pose a discrimination law risk?
Could health and safety considerations be managed another way (working from home, mask wearing, social distancing, etc)?

Unfortunately, none of this provides the ultimate answer to what action can lawfully be taken against an employee who refuses to be vaccinated for COVID (or does not wish to share information about vaccinations). Until the Government provides further guidance on this question, or until we have court or tribunal decisions specifically on this issue, this uncertainty will remain. Professional advice should be sought.