An assumption of 'non-mandatory' 3 min read
The Fair Work Ombudsman and Safe Work Australia have released guidance on Australia's COVID-19 vaccine rollout.
- Guidance recently released by Fair Work Ombudsman and Safe Work Australia says most employers should assume they cannot mandate COVID-19 vaccinations for their workers.
- The Guidance sets out key factors that employers need to consider in managing their approach to vaccinations and COVID-19 risks, and reinforces the importance of employee consultation.
- Any decisions regarding mandatory vaccinations must take into account obligations and risks under employment and anti-discrimination laws.
Mandating vaccines unlikely for the large majority of employers
We previously explored factors that may be relevant to determining the reasonableness of an employer's direction to require workers to receive a COVID-19 vaccine.
The Guidance says it is currently unlikely that the large majority of employers could require employees to be vaccinated. This is primarily because:
- Australia's COVID-19 vaccination program is voluntary and there are no laws or public health orders specifically enabling employers to mandate vaccinations; and
- the COVID-19 pandemic does not automatically make it reasonable for an employer to require their employees to be vaccinated. For many workplaces, it would not be a 'reasonably practicable' control measure.
Ongoing monitoring needed
The Guidance acknowledges that whether mandating vaccinations will be reasonably practicable in managing work health and safety risks (and therefore amount to a reasonable direction) will depend on the particular circumstances at the time. The Safe Work Australia guidance lists a number of questions for employers to consider when undertaking their risk assessment processes:
- Is the Australian Health Protection Principal Committee recommending vaccinations for all workers in the industry?
- Do workers interact with people with a higher risk of infection, or have close contact with people who are most vulnerable to health impacts of infection?
- Do workers interact with large numbers of people in the course of their work that could contribute to a 'super-spreading' event if workers contract COVID-19?
- What is the likelihood of spread in the workplace?
- What other control measures are available and do those already minimise the risk of infection?
- Would mandating vaccinations be unlawful in the circumstances?
Interaction with employment and anti-discrimination laws
The Guidance reinforces the need for employers to consider their obligations and responsibilities under anti-discrimination laws and the general protections provisions under the Fair Work Act (2009) when making decisions associated with mandating vaccinations.
Ongoing engagement with the workforce (or individual employees as necessary) to alleviate concerns and share information about steps that are being taken to manage the risk of COVID-19 infection is highlighted as an important step for employers to take.
- Read the Guidance, including any industry-specific information provided by Safe Work Australia.
- Consider the questions put forward in the Safe Work Australia guidance (as listed above) as you apply your usual health and safety risk assessment processes to determine the appropriate controls to manage COVID-19 related risks.
- Monitor government policy and advice from health and safety authorities.
- Engage with workers about how you will approach vaccinations in your workplace, provide information on the vaccine from government and health authorities, and develop protocols for how disputes about vaccination will be resolved.