In the context of the ongoing outbreak of the Delta COVID-19 variant and the increasing availability of vaccines, the Fair Work Ombudsman (FWO) has now updated its Guidelines for Workplace Vaccinations (Guidelines).

The Guidelines now importantly provide further guidance to employers as to when, and in what circumstances, it will be considered “lawful and reasonable” to direct an existing or prospective employee to receive a COVID-19 vaccination. The Guidelines also outline the types of employers where it may be considered reasonable to direct an employee to receive a vaccination.  While the Guidelines have no direct legal force, they are a clear indication of the FWO’s views on how vaccinations in the workplace should be managed.

This is a noticeable but expected shift from the FWO’s previous guidance (issued prior to the emergence of the Delta COVID-19 variant). The FWO’s earlier guidance was that the overwhelming majority of employers should assume that they will not be able to require their employees to be vaccinated.

The key aspects of the Guidelines are addressed below:

Can employers direct employees to receive the COVID-19 vaccination?

Consistent with common law principles, the Guidelines indicate employers are entitled to direct their employees to be vaccinated provided that the direction is lawful and reasonable in the circumstances.

As set out in the Guidelines, employers should consider the following when assessing whether a direction to receive the COVID-19 vaccination would be reasonable:

• the nature of the workplace (see the table below which sets out a brief overview of high to low risk areas of work based on the likelihood for transmission of the disease);
• the extent of community transmission of COVID-19 in the location that the direction is to be given, as at the date it is given (for NSW, a current example would be employees working or living in one of the various Local Government Areas identified by the NSW Government as “areas of concern”);
• the effectiveness of the vaccine in reducing the risk of transmission or serious illness in the workplace (for example, if employees primarily work from home or in isolated environments, a reduction in risk would be relatively low);
• individual employee circumstances, including duties, risk associated with their work and whether they have a legitimate reason for not receiving the vaccine (i.e. because of an underlying medical condition or on the advice of a treating practitioner); 
• work health and safety obligations; and
• the availability of the vaccine.

The FWO has developed the tiered system below to assist employers in assessing whether a direction to be vaccinated would be considered reasonable:

Refusal to comply with a direction

The Guidelines indicate that employees may refuse to comply with a direction to receive the COVID-19 vaccination in one or more of the following circumstances:

• if the direction is unreasonable having considered the various factors outlined above; and
• they have a legitimate reason for refusing the vaccination, for example, they have an existing medical condition and/or are acting on the advice of their health practitioner.

The Guidelines importantly add that if an employee refuses to comply with a direction where the direction is reasonable in all of the circumstances, an employer may have a right to take disciplinary action against the employee, including termination of employment. We recommend that employers obtain advice on any proposed disciplinary action in order to navigate the risks of termination and discrimination related claims and the possible reputational issues that may follow, particularly from any termination decision.

Other issues addressed by the Guidelines

Guidance is also provided by the FWO on the following matters:

• Proof of vaccination or refusal to comply with reasonable direction: An employer may, in a limited set of circumstances (i.e. if required or authorised by law), direct the employee to provide evidence to prove the legitimacy of their refusal to comply with a COVID-19 vaccination direction.  Similarly, an employer may also direct an employee to provide proof of their vaccination status if an employer has provided a lawful and reasonable direction to be vaccinated.  In either scenario, the direction given by the employer must be lawful and reasonable in all the circumstances.
• Privacy: Employers are only able to collect evidence of vaccination in limited circumstances (i.e. if required or authorised by law). Employers should consider their obligations and employee rights under the Privacy Act 1988 (Cth) before issuing the direction. 
• Anti-Discrimination & General Protections: Anti-discrimination laws generally prohibit discrimination against employees in the workplace based on protected characteristics, such as disability. Before requiring employees to be vaccinated, employers need to consider Commonwealth, State or Territory discrimination laws and general protections provisions under the Fair Work Act 2009 (Cth) (FW Act).
• Prospective Employees: An employer may be entitled to direct a prospective employee to receive the COVID-19 vaccination before commencing work, having considered the various factors that would deem that direction lawful and reasonable and provided it does not contravene the general protections provisions under the FW Act or any applicable anti-discrimination laws.
• Contractual Requirements: Including provisions in an employee’s contract requiring them to receive a vaccination will not be lawful simply because it is in the contract. Such a term should meet the reasonable and lawful direction test and have regard to anti-discrimination laws. 
• Consultation: Many workplaces are covered by modern awards or enterprise agreement. All awards and enterprise agreements require employers to consult with employees and any representatives when an employer intends to implement significant workplace changes. The giving of a direction for employees to receive the COVID-19 vaccination may trigger these consultation obligations under industrial instruments, as well as State or Territory work health and safety laws.

What should employers do next?

We recommend employers:

• consider the Guidelines if your organisation is contemplating the issuing of a direction to employees to be vaccinated. Whilst they are guidelines only, having regard to them will assist you to determine the appropriateness of issuing a direction to employees to be vaccinated;
• carefully consider the individual, workplace and community circumstances that may impact whether a direction to be vaccinated is a lawful and reasonable direction, as well as any industrial instruments or workplace laws that may apply;
• properly test and consider the views and circumstances of any employees who refuse the direction given; and
• if you are uncertain about your right to give a vaccination direction or impose disciplinary sanctions for a refusal to comply, obtain legal advice.

The Employment team at Gilbert + Tobin are here to address any queries that you may have in relation to lawful and reasonable directions in the context of COVID-19 vaccinations.

You can view the Guidelines on the FWO website.