Updated Advice: Can Employers Mandate Vaccines?

James Conomos

Founder and Principal Partner, James Conomos Lawyers

Since our last update on mandatory vaccines in the workplace, the Fair Work Ombudsman has provided some further guidance as to what circumstances it considers will give rise to a valid lawful and reasonable direction from an employer in respect of vaccinations.

The FWO considers there are four (4) broad categories of work in respect of risk of exposure:

  • 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).
  • 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).
  • 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).
  • 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 considers that the risk of exposure that an employee faces, as well as other factors such as risk of exposing others could form a basis for a legally valid direction.

Accordingly, workers falling into Tiers 1 and 2 may have the most reasonable prospects of being validly directed to get vaccinated. The position is less clear for Tier 3 and will require a closer consideration of all the factors relating to the worker’s role. For Tier 4 workers it is less likely that a mandatory vaccine direction will be reasonable.

The Tier system is not legally binding, it is simply a general guide to assist employers and employees in determining their particular needs and position in respect of any direction. The FWO encourages all parties to seek advice for their specific situation and not rely on general advice.

Ultimately what is needed is a case-by-case assessment of the circumstances including the work performed, the requirements of the business, and the potential health risks. The factors for consideration are very broad and may not always apply across work forces. We outlined some of these factors in our previous update.

Our firm is able to assist you with advice on the above whether you are an employee or an employer. Please do not hesitate to contact us.