This article was written by Philip Willox & Holly Gretton.
The Federal Government has made it clear that it will not mandate COVID vaccinations and that it will be up to employers to determine whether they can, or must, require vaccinations for their workers. This decision for many will rest on an analysis of whether it is a ‘lawful and reasonable’ direction. ‘Reasonableness’ has a number of aspects to it and includes a risk-based assessment.
The Federal Government signalled, and the Fair Work Ombudsman (FWO) has now confirmed, that what might be ‘reasonable’ has shifted. Until yesterday, the FWO position was that the ‘overwhelming majority’ of employers should assume they were unable to require their employees to be vaccinated. This has been updated to guidance for four-tier work types and provides employers with specific factors to take into account when considering, on a case-by-case basis, whether vaccinations for employees can be mandated.
The work type tiers focus on levels of interaction between people in the workplace and the level of risk and consequences of infection. The scope of workplaces where mandatory vaccinations might be reasonable has clearly expanded. Given this analysis, it seems likely that the assessment of what is ‘reasonable’ will continue to shift in favour of more workplaces being able to adopt some level of mandatory vaccinations for workers.
As NSW moves into its eighth week of lockdown and Victoria tackles its sixth lockdown, as the supply of vaccinations becomes more plentiful and as governments encourage greater vaccination levels (including by requiring certain vaccination levels to lift lockdowns and potentially border closures), employers should be actively assessing what this means in their workplace.
The updated FWO guidance is available here.