Background
As Australia contemplates what the new “normal” will have to look like in order to keep the coronavirus pandemic under control, employers are having to consider not only which control measures will be effective, but also which will be legal.
Increasingly, many employers are seeking to make vaccination mandatory for their workers.
Which employers can make vaccination mandatory for their employees under the current laws?
The current advice from the Fair Work Ombudsman is that employers can only require their employees to be vaccinated where:
- a specific law (such as a state or territory public health order) requires an employee to be vaccinated;
- the requirement is permitted by an enterprise agreement, other registered agreement or employment contract (noting that to be enforceable, a contractual term that requires vaccination against COVID-19 must not offend an anti-discrimination law); or
- it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.
What is considered ‘reasonable’ will depend on the specific circumstances of the workplace, as well as the prevalence of COVID-19 in the area.
The Fair Work Ombudsman has classified businesses into four tiers to assist with determining whether a direction may be reasonable:
- 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, hotel quarantine or border control).
- 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, healthcare or aged care).
- 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, essential goods and services).
- Tier 4 work: where employees have minimal face-to-face interaction as part of their normal employment duties (for example, working from home).
The Fair Work Ombudsman’s guidance is that it is “more likely” to be reasonable to require vaccination for Tier 1 work as opposed to Tier 4 work.
Privacy considerations
Employers requiring their workers to disclose vaccination status must ensure they collect and handle this information in accordance with applicable privacy legislation. Unless an exception applies, entities required to comply with the Australian Privacy Principles under the Privacy Act 1988 (Cth) (Privacy Act) will only be able to collect vaccination status information (which is classified as sensitive information under the Privacy Act) where it is reasonably necessary for the entity’s functions or activities and the individual has consented to the collection. The type of information that is considered ‘reasonably necessary’ to collect will change over time depending on the level of COVID-19 risk for employees of the entity.
Discrimination considerations
Any employers introducing a vaccine mandate must be careful to ensure their policies take into consideration Australia’s anti-discrimination legislation. Policies need to consider exemptions for workers who are unable to receive the vaccination due to an attribute which is protected by anti-discrimination legislation, such as disability or age, unless there is an inherent requirement of a particular role that a worker be vaccinated against COVID-19 (which will likely be more difficult to establish where an employee’s role is not public facing and does not involve a high risk of contracting COVID-19).
Future developments
This is a largely untested and rapidly developing area of law and as such, any employer planning on introducing a vaccine mandate in its workplace should seek specific legal advice before doing so.
More information
If you have any queries or would like further information about this article, please contact:
Kathryn Speed
Principal
M: 0408 446 013
E: kspeed@pageseager.com.au
Joe Mullavey
Principal
M: 0416 794 061
E: jmullavey@pageseager.com.au
Sarah Standen
Lawyer
T: (03) 6235 5147
E: sstanden@pageseager.com.au
Published: 16 September 2021
