COVID-19 Vaccinations in the workplace Members advised to exercise caution
MANDATORY workplace vaccinations remain a topic at the forefront of the current industrial relations sphere.
We advise that there are only three circumstances where implementing a mandatory COVID-19 vaccination policy is permitted:
1) Where a specific law (eg. a public health order) requires an employee to be vaccinated;
2) Where an enterprise/ collective agreement or employment contract permits this; or
3) Where it is lawful and reasonable for the MGA TMA Member to direct a particular employee to be vaccinated.
At the date this article was written, circumstance 1 and 2 as above are unlikely to apply to staff. However, health orders requiring mandatory vaccinations for particular employees of some businesses in Victoria and the Northern Territory may apply by the time this article is published. If so, management may be able to mandate the vaccine in their workplaces pursuant to circumstance 1 above. Business owners are encouraged to seek legal advice prior to doing so.
If circumstance 1 and 2 as above do not apply, you are reminded that implementing a mandatory COVID-19 vaccination policy is permitted only if it is lawful and reasonable.
Business owners and management may be required to consult with employees before implementing such a policy.
WHAT IS ‘LAWFUL AND REASONABLE’?
Lawfulness and reasonableness of an employer directive should be assessed on a caseby-case basis. This should be an assessment carried out for individual businesses and individual employees. It may be reasonable for a particular business to require mandatory vaccination for a particular employee, but it may not be reasonable for another business or for another employee.
You must consider the below factors, in deciding whether a mandatory vaccination policy is lawful:
• Compliance with existing employment contracts, award or agreement; and
• Compliance with legislation (e.g. anti-discrimination law).
You must consider the below factors, and any other relevant factors, in deciding whether a mandatory vaccination policy is reasonable:
• The nature of the workplace –
- how public-facing is the
particular role? - Is social distancing possible? Are other COVID-19 prevention measures possible?
- Is the employee providing an ‘essential service’? • Extent of community transmission in the area;
• Risk of transmission in the area between employees, customers and members of the public;
• Work health and safety obligations;
• Each employee’s individual circumstances –
- Is the employee performing high risk work as a result of their duties?
- Is the employee in a high-risk or vulnerable category?
• Whether the employee has any legitimate reason for not being vaccinated; • Vaccine availability; and • What ‘tier’ of work the particular employee performs. Employees working in retail locations are likely to perform ‘Tier 3 work’ (as defined by the Fair Work Ombudsman), which is where there is interaction or likely interaction between employees and other people. You may also have employees that perform ‘Tier 4 work’, which is where there is minimal face-to-face interaction. It is more reasonable to require vaccination of a Tier 3 worker than a Tier 4 worker.
Determining whether mandatory vaccinations is lawful and reasonable can be a complex exercise. We encourage MGA TMA Members to contact our Legal and IR team if requiring assistance with assessing the above factors.
In light of the Fair Work Ombudsman’s view that the “overwhelming majority” of employers should assume that they cannot require mandatory COVID-19 vaccinations, you are advised to refrain from implementing a mandatory COVID-19 vaccination policy without first seeking legal advice.
Instead, you are advised to continue encouraging and incentivising staff members to receive the COVID-19 vaccine, as well as maintaining a high standard of COVID-19 risk control measures in the workplace. Vaccination is our key to reducing restrictions and reopening our communities and all eligible employees should be encouraged to speak with their doctor about getting vaccinated.
FOR MGA TMA MEMBERS ONLY:
The MGA TMA Legal and IR team has prepared a template COVID-19 vaccination policy that encourages employees to receive the COVID-19 vaccination. Our Members are encouraged to contact the MGA TMA Legal and IR team on 1800 888 479 for further queries on vaccinations in the workplace.
For membership enquiries, please contact Marie-Claire McKiernan on (03) 9824 4111 or email email@example.com