Compulsory vaccination – Can employers make Covid vaccination mandatory?

The Four-Tier System to Mandatory Vaccination

Under State and Federal laws certain industry workers may be mandated by public health orders to vaccinate against COVID-19. Up until now all vaccine mandates for workforces have been made by government.  However employers in the private sector are wondering if their vaccine mandate plan will stand up to possible legal challenges and they are turning to the Fair Work Ombudsman for guidance.

In response, Fair Work Ombudsman has created a four-tier categorisation system to provide some clarification.

Designated hotel quarantine and border control workers are ‘Tier One’ industries.  This means that in the line of duty they regularly come into contact with people that are at an increased risk of being infectious. Therefore mandatory vaccinations for these individuals is likely to be viewed as reasonable and lawful in order to diminish the risk of transmission.

‘Tier Two’ employees are those employed in residential aged care and health care.  This category of workers come into close contact with vulnerable people in the performance of their roles.  Once again vaccinations are essential in these industries for public safety reasons.

However when addressing ‘Tier Three’ and ‘Tier Four’ the complexity of mandatory vaccination increases as directions must comply with Anti-Discrimination Laws.  This is a grey area that requires further interpretation and resolution.

In light of the recent outbreaks and community transmission employers are striving to protect their workforce and wondering whether it is within their power to mandate vaccination.  Especially in places such as South-West Sydney, where manufacturing plants and building sites have had numerous COVID cases detected.

‘Tier Three’ workers are those that interact with co-workers and/or customers.  This encompasses construction staff, shops and grocery stores.  The rule of thumb in this grey area is that if there is local community transmission in the relevant district and the business is permitted to stay operational during a lockdown, then a mandatory vaccination directive is more likely to be found to be reasonable and hence lawful.

In what could be a legal test case for Australia, Shepparton food processor SPC has become the first company to mandate COVID-19 vaccination for all its 450 onsite employees. Staff have been permitted six weeks to book their first vaccination.  Company mandated vaccines are already deployed under public health orders in America with Microsoft, Google Washington, BlackRock and Delta airlines being the first enactors[1].

‘Tier Four’ workers have minimal public interaction and are mostly working from home.  In this category a mandate is unlikely to be reasonable.

Fair Work advises a case-by-case assessment and the use of the Four Tier system as a guideline.

Whether you are an employer or employee the team at McLaughlins Lawyers can help you understand the four tier system to mandatory vaccination and provide you with clarity regarding your particular circumstances.  McLaughlins Lawyers have been helping the people of Queensland for over 60 years. We understand the law and apply our sharp legal minds to solve our clients issues.

McLaughlins Lawyers, your experienced Gold Coast Lawyers, we stand beside you and are here to help you. Contact us on (07) 5591 5099 and a member or our team will be happy to help.

 

[1] ABC News “Shepparton food processor SPC is the first company in Australia to mandate COVID-19 vaccination of all staff

 

Author: Rebecca Baird

Director: Ian Kennedy & Sophie Pearson

Date: 19 August 2021

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