There has been much discussion, especially since the outbreak of the Delta variant, as to whether employers can direct their employees be vaccinated from COVID-19. Recently, the Fair Work Ombudsman (“the Ombudsman”) advised that most employers would not be able to do this. However, recently they retracted this advice and have since advised that employers can direct their employees to be vaccinated if it is considered ‘lawful and reasonable’.

Firstly, any ‘lawful’ direction needs to comply with relevant industrial instruments such as the Fair Work Act, relevant Awards, Enterprise Agreements and employment contracts. The employer also needs to consider whether the request could be a potential breach of anti-discrimination laws.

Secondly, when assessing how ‘reasonable’ the direction is, the employer needs to consider the physical workplace, possible community transmission and workplace health and safety obligations. In turn, the employer also needs to look at each employee’s circumstances individually – their role, vaccine availability and are there any legitimate reasons the employee may refuse the vaccine.

As part of the process of determining whether the direction is lawful and reasonable, the Ombudsman has provided a four-tier system to assist in making this determination. Please note that some businesses may have employees working within or across different tiers.

Tier 1

Do your employees interact with people that would lead to them having an increased risk of being infected with COVID-19? Industries could include workers in a

High risk role and more than likely to be reasonable to require vaccination.

Tier 2

Do your employees work closely with vulnerable people who would be considered high risk if they were infected with COVID-19?

High risk role and more than likely to be reasonable to require vaccination

Tier 3

Do your employees interact with other people face to face (i.e. employees, customers, clients or general public) in the course of their duties?

Risk dependant on type of interactions and the risk of community transmission.

Tier 4

Do your employees have minimal face to face interaction as part of their employment?

Minimal risk – request to be vaccinated may not be considered reasonable

If an employee has provided a lawful and reasonable direction to have a COVID-19 vaccination and the employee complies, the employer can also ask the employee to provide evidence of their vaccination. An employer may ask to view an employee’s vaccination status but can only retain a copy if the employee consents and the collection is reasonably necessary for work purposes, as per privacy obligations.

Source: Australian Government – Fair Work Ombudsman http://www.fairwork.gov.au COVID-19 vaccinations: workplace rights & obligations - Fair Work Ombudsman

For advice on HR-related matters, please contact our team of People Matters Advice advisors at AB Phillips on Monday to Friday between 9:00 am and 5:00 pm AEST by phone on 1300 208 828 or by email: advice@abphillips.com.au.