The Fair Work Ombudsman (FWO) has updated its guidance regarding directing employees to get the COVID-19 vaccination.
Generally, employers can only require an employee to be vaccinated if:
- there is a specific law requiring them to be vaccinated (for example a public health order); or
- the requirement is permitted by an enterprise agreement or employment contract; or
- the direction to get vaccinated is lawful and reasonable.
When determining what is lawful and reasonable, a “case by case” approach is applied and will include the consideration of numerous factors, such as:
- the nature of the work and workplace;
- the extent of COVID-19 transmission;
- WHS obligations; and
- the employee’s personal circumstance, including if there is a legitimate reason not to be vaccinated, the employee’s duties and risks of not being vaccinated.
The FWO’s advice outlines a general guide with 4 tiers:
- Tier 1 covers work where there is an increased risk of transmission due to required interaction with people who potentially have the virus – such as hotel quarantine workers. The direction to be vaccinated to a worker in this tier is more likely to be reasonable.
- Tier 2 is where the job entails regular interaction with vulnerable people, for instance, health care workers. The direction to be vaccinated to a worker in this tier would more likely be reasonable.
- Tier 3 is where interaction with other people is a normal part of the employment such as essential goods stores. The reasonableness of a direction to an employee to be vaccinated in this tier is dependent on various circumstantial factors – for instance the prevalence of COVID in the area at the time.
- Tier 4 covers work where the normal employment duties include minimal face to face time with other people. It is generally unlikely for a direction to an employee of this tier would be deemed reasonable.
The above tiers are an indication only and each case should be reviewed on an individual basis, and will be dependent on the facts surrounding the case at that particular time.
Generally, if an employer has lawfully and reasonably directed an employee to get a COVID-19 vaccine, the employer can ask the employee to provide evidence of their vaccination as long as it is reasonable and lawful to do so.
Employee consent should be obtained to collect and record vaccination evidence and Employers should ensure that such collection is required for the Employer’s functions and activities.
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Please note this blog is general in nature and for information purposes only and should not be relied on for legal advice. Should you require advice regarding the information in this email please contact us so we may provide advice specific to your needs and circumstances.