Vaccines in the workplace

No one can deny that the hottest topic right now is COVID-19 vaccines in the workplace. Daily news reports are saturated with a state-by-state breakdown in the rates of first and second doses, vaccine passports, and the promise of freedoms.

Mandatory vaccines in the workplace have also become big news, with various jurisdictions around the country requiring them for workplaces where the chance of passing on the COVID-19 virus is high. 

A few of the nation’s largest employers have made the decision to mandate vaccination within certain sectors of their workers. But where does that leave the average business owner?

Showing evidence of vaccination

There are three circumstances when an employer may require their employee to show evidence that they have received the COVID-19 vaccination.

  • If it is required under a Public Health Order or other legislation.
  • Where an agreement or employment contract mandates particular vaccinations (such as the flu vaccine in aged care workers).
  • Where it is lawful and reasonable to give a direction to be vaccinated.

It may be lawful if mandated by legislation or a contract, award, or agreement. Or it may be reasonable if used to manage risks to work, health, and safety (WHS).

However, the specific circumstances of a particular workplace must be examined and assessed before any decisions are made. The fact that we are in a pandemic is not enough to mandate compulsory vaccines in the workplace.

To assist employers to determine appropriate action, the Fair Work Ombudsman has provided guidance to be used on a case by case basis as to whether a direction to vaccinate may be reasonable.

For example, it may be reasonable for workers who face a great risk of infection, such as those who work in border control and quarantine. Similarly, it is recommended for those who have close contact with the most vulnerable in our community, such as aged care.

Framework for vaccines in the workplace

The guidance consists of four broad tiers of work, defined as follows:

  • Tier 1: where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (for example, hospitals, hotel quarantine, or border control).
  • Tier 2: where employees are required to have close contact with vulnerable people (for example, employees working in health care, disability, childcare, aged care, or teaching).
  • Tier 3: where there is interaction between employees and other people such as customers, other employees, or the public (for example, stores providing essential goods and services such as retail, construction, manufacturing).
  • Tier 4: where employees have minimal face-to-face interaction (for example, office workers or where employees are working from home).

Workplaces may have employees who fall into more than one of these categories.

Safe Work Australia has also provided guidance advising that it is unlikely that mandatory vaccination would be required for an employer to comply with their work, health, and safety obligations. 

This is because vaccinations are only one part of risk mitigation in the workplace. Other control measures that workplaces have been using throughout the pandemic such as cleaning, mask wearing, physical distancing and sanitising, are also required to help reduce the risk.

Consideration must be given to the inherent risk in different workplaces.

The vulnerability of customers, clients, and stakeholders should also be considered along with the likelihood of it spreading in the workplace.

Should vaccinations in the workplace be mandatory?

Is vaccination recommended or mandated by the Public Health authorities for an industry or workers?

Before any mandate to vaccines in the workplace are introduced, we will need to comply with any consultation requirements in an award or agreement. There must also be consideration given to how exemptions will be handled and properly assessed, noting the direction must be both lawful and reasonable. Discrimination based on any of the protected attributes must also be prevented.

An alternative approach to mandatory vaccination is incentivisation and education. Information kits for businesses have been issued by the Department of Health. Guidelines for the offer of rewards and incentives for encouraging workers to get vaccinated have also been provided by the Therapeutic Goods Administration (TGA).

Businesses who offer rewards for vaccination must follow the following rules:

  • Only to be offered in relation to the TGA approved vaccines,
  • State that the vaccination must be undertaken on the advice of a health practitioner,
  • Only refer to the COVID-19 vaccines generically and not use any trade names,
  • Must be made to all eligible people who have been fully vaccinated (with two doses) and applied retrospectively to all employees who have already been vaccinated prior to the offer, and
  • Rewards cannot include tobacco, medicines, or excessive amounts of alcohol.

Ideas for incentives could include cash, extra annual leave, discounts, or vouchers.