The Fair Work Ombudsman recently updated its mandatory vaccine guidelines to try and remove confusion about whether employers can mandate the COVID-19 jab. But this lawyer says parts of its approach are “misguided”.

Up until recently, public discourse about employers mandating the COVID-19 vaccination largely concerned employees in high-risk professions such as health and aged care.

In August, Prime Minister Scott Morrison announced the mandatory vaccination for all aged care workers, with the federal government issuing an $11 million grant to help enable aged care facilities to give employees time off to receive the vaccine. 

Many people posited that the COVID-19 vaccination could perhaps be mandated for certain industries in much the same way that the flu vaccine had been. Of note, there was scrutiny over the case of a childcare employee who refused to have the flu vaccine, and was subsequently let go.

When the employee brought her case to the FWC, deputy president Ingrid Ashbury concluded that the employer’s direction was lawful and reasonable given the employee’s line of work and proximity to vulnerable children.

However, AHRI’s research from February this year revealed that 60 per cent of HR respondents felt confused about the lack of clarity around the mandatory COVID-19 vaccine conversation. This confusion was also shared by the general public.

In response, the FWO recently updated its guidelines to try and provide clearer information around whether workplaces can mandate COVID-19 vaccination for their employees.

Although Michael Byrnes, employment lawyer partner at Swaab, says the new guidance is “welcomed and far more nuanced” than its previous advice, he also thinks the approach is “thoroughly misguided” in some respects. Here’s why.

What are the new guidelines? 

Under the FWO’s updated guidelines, employers can mandate the vaccine if it’s ‘lawful and reasonable’ to do so. This determination will, in large part, depend on which of the following tiers employees fall into:

• Tier 1: Employees who are required to interact with people considered high-risk (e.g, hotel quarantine or border control staff)
• Tier 2: Employees who have close contact with vulnerable populations (e.g, healthcare or aged care workers)

Both tiers one and two are likely to be mandated by public health orders or workplace contracts, but there’s far more ambiguity for employees who fall under the next two tiers.

• Tier 3: Employees who interact with the public as part of their normal employment (e.g, essential retailers)
• Tier 4: Employees who have limited in-person encounters throughout the course of their employment (e.g, they are predominantly working from home)

Byrnes says the continuum from tier 1-4 provided by the FWO offers some “helpful guidance”, but ultimately employers will still need to apply their own judgment.

“The test for almost all employers around what is lawful and reasonable direction will depend on the individual circumstances of the employer. Even with the benefit of the safe work guidelines, which offer a helpful high level of guidance, employers are still going to require some bespoke individualised advice that takes account of the circumstances of the workplace, the employees and the duties and work performed by those employees.”

The practical pitfall

As outlined in a recent Mondaq article, determining whether a mandate for vaccination is considered ‘reasonable’ for tier three employees will require organisations to consider the level of community transmission – i.e. the relative risk of COVID-19 infection or transmission.

This is the main point of contention that Byrnes raises.

“The analysis relies on assessing the situation of COVID-19 in a given area at a particular point in time,” he says.

“By that argument, if COVID-19 transmission is high in a particular area, that makes the direction more reasonable than if it wasn’t. While on a theoretical or academic level this is difficult to disagree with, it’s virtually unworkable on a practical level because a mandatory vaccination direction is not something you can implement overnight.”

Take a look at AHRI’s COVID-19 resources webpage for helpful resources, including considerations for mandatory vaccine programs.

Given the numerous steps that need to be taken upon issuing a direction – such as communicating the mandate with employees, and requiring employees to book in for two vaccinations, as well as accomodating for recovery time – Byrnes says the FWO’s approach simply “isn’t a practical way of addressing the issue”.

Instead, he argues that a more useful and practical alternative would be to consider the potential risk of COVID-19 transmission.

“This should provide the basis of the argument that the direction is reasonable to give to tier three employees, as opposed to waiting for it to be present in that area.” 

Split workforces

There may be situations in which some employees fall into tiers one or two, and others sit within tiers three or four.

In these instances, there would be ‘lawful and reasonable’ grounds to issue a mandatory vaccine for some, but not all, employees.

“The issue here is not a geographical one, but around the nature of the work being performed,” says Byrnes.

“Some employees may be on the front line or in a high-risk environment with COVID-19, while others might be working from home and involved in backroom operations with minimal human contact. Those employees would fall squarely into tier four, so it would be difficult to mandate vaccination.”

Although Byrnes says most businesses strive for consistency across their workforce (and may therefore be reticent to mandate the vaccination for one geographical area and not for another), ensuring consistency for the type of work, the inherent duties of the role, and the possible risk of transmission could reasonably mean some employees in a workforce are mandated to have the vaccine and others are not.

Issuing a direction

If an employer issues a direction calling for mandatory vaccination, Byrnes advises they take the following steps:

1. Clearly articulate your reasoning: Mandating the COVID-19 vaccination in order to “be a good corporate citizen” or because you think it’s a good idea philosophically is not enough, says Byrnes.
   “The argument must be grounded in safety imperatives” – i.e. vaccination is necessary for the health and wellbeing of the workforce and general public.
2. Ensure consistency: “If you are going to mandate the vaccination, you have to ensure your other control measures dealing with COVID-19 are in place,” says Byrnes. This includes strategies such as proper cleaning and hygiene practices, mandating PPE, and ensuring social distancing in workplaces.
3. Provide high-level reasoning to employees: “There’s no need to go into chapter and verse to explain their reasoning, but employers should provide a high-level rationale about why vaccination is needed for their work so that the employee can make an informed decision about whether they consider the direction to be reasonable or not.”
4. Back up your reasoning with policy: “The policy needs to give an employee a reasonable timeframe by which to comply with the direction. This will also give the employee an opportunity to raise a medical issue that might prevent them from being vaccinated.”
5. Afford procedural fairness: If an employee refuses the vaccination, an employer must grant them benefit of unfair dismissal protection, says Byrnes. 

“The employer will need to afford the employee procedural fairness so that they have the opportunity to raise any objections. The FWC has clearly indicated through the flu vaccination that it will give short thrift to many of the arguments raised by the anti-vaccination movement. Nonetheless, it will be important to afford the employee procedural fairness to raise any issues they want considered, even if those issues ultimately are found to lack relevance or merit.”

What do you think about the recent FWO mandatory vaccine guidelines? Let us know in the comment section.