No jab, no work – FWO’s updated advice still leaves questions for employers

The Fair Work Ombudsman (FWO) posted updated guidance on its website last night relating to the power of employers to mandate COVID-19 vaccinations for their employees.

This is an issue that we have also discussed before.

Previously, the FWO’s position was that employers are “overwhelmingly” unable to require employees to be vaccinated.

The FWO does provide a useful guide in dividing work into four broad tiers, as follows:

1. 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).
2. 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).
3. Tier 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).
4. Tier 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).

The FWO correctly points out that the coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus.  Instead, the drivers as to whether a direction to have the vaccination is reasonable are primarily health and safety related.  In relation to specific individuals, they also might involve consideration of anti-discrimination law requirements as well, particularly where an employee has a valid medical justification for not receiving the vaccination.

Consequently, the FWO confirms that “the question of whether a direction is reasonable will always be fact dependent and needs to be assessed on a case-by-case basis“.

The guidance suggests that employers should consider their workplace consultation obligations, when implementing a vaccinations policy.  It refers to the standard consultation obligations in all awards and those contained in enterprise agreements.  The FWO does not express a view as to whether mandating vaccinations constitutes a major workplace change within the meaning of the standard consultation clauses in awards (which are frequently mirrored in enterprise agreements).  It would be helpful if the FWO expressed an opinion on this.

The issue turns on whether the employer makes a definite decision to make major changes to its production, program, organisation, structure or technology that is likely to have significant effects on employees.  We doubt that mandating vaccines constitutes a “major change” in this regard.

The FWO also refers to consultation obligations under workplace health and safety laws.  There is some tension here between these consultation requirements and the duty of care on an employer when it is located in a “hot spot” where transmission is rapidly occurring.  The FWO itself indicates that mandating vaccinations in this situation “is more likely to be reasonable”.  However, guidance for employers in bypassing consultation requirements in a pandemic situation like this would be useful.

The guidelines state that “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”.  This does not appear to be sound risk management.  Employers have a duty under workplace health and safety laws to:

• for employees – provide and maintain a working environment that is safe and without risks to health, so far as is reasonably practicable; and
• for persons other employees – to ensure that they are not exposed to risks to their health and safety, so far as is reasonably practicable.

Based on the suggested guideline, it would therefore be less reasonable, for example, for employers in most of rural Australia and in Western Australia to mandate vaccinations for their staff because no community transmission at all or of significance has occurred for some time.  This advice seems to miss the fact that we are dealing with a pandemic.  Any area in Australia could be prone to becoming a major hot spot for transmission of coronavirus (just like Sydney currently is) almost overnight.  That is the nature of the Delta strain.  To suggest that it is less reasonable for employers in these areas to take proactive action to address the risks by mandating vaccines before the area becomes a hot spot is unusual.

Two of the significant factors that employers must take into account under health and safety laws in assessing risks are the likelihood of the risk occurring and the consequences if it does.  On any reasonable view, the likelihood of the Delta strain spreading to any area in Australia is high, based on recent examples both here and overseas.  The potential consequences of the strain spreading to a particular area are major to catastrophic, where vaccination levels are low.

On the other side of the coin, the guidelines state that a direction to employees to receive a vaccination is more likely to be reasonable where community transmission of coronavirus is occurring in an area where the employer’s workplace is based.  This seems to be dealing with the issue after the horse has bolted.  In a pandemic situation where we are dealing with the Delta strain, it is too little, too late to wait until coronavirus is occurring in your area before addressing whether the vaccine should be mandated.

For further advice on these issues please contact our employment team.