The Fair Work Ombudsman, Australia recently cleared the confusion and disparities with regard to vaccinations at the workplace and the mandate. The recent guidance follows the lawfulness and reasonableness to outline mandates on Covid-19 vaccinations at the workplace.

Key considerations

As per the latest FWO guidance, there are a number of chief factors to be adhered to, while mandating Covid-19 vaccination and limitation such as, social distancing, presence of a Covid-19 hot spot, nature of work (if public interaction is present or not), essential services. The Ombudsman stated that employers cannot simply force vaccinations on their workers, they need to consider each case differently.

More or less, workers under healthcare services and quarantine services are under the mandated category to get jabbed, says ACTU secretary Sally McManus.

Availability of vaccines, extensive testing, community spread and creation of Covid-19 hotspots are other factors to be considered.

FWO opines, Covid-19 vaccination mandate should be regulated by laws and on a case-to-case basis. It lays importance on the applicability of laws to enforce vaccinations, such as employment contract, award or agreement, Commonwealth, state or territory laws, or any other applicable law. Other factors that FWO finds worth inculcating on vaccination mandate include the type of workplace, community transmission risk, WHS regulations, availability of vaccines, risks and duties associated with the nature of work, any medical condition that prohibits vaccination. According to FWO, the guidance provides a set of norms, that each employer-employee should pay heed to, depending on their respective circumstance and merit.

On similar grounds, Prime Minister Scott Morrison bifurcated the employers and employees into different categories, with regard to vaccinations. The Prime Minister has put different workers under different segments, according to their nature of work, risks associated with the type of work, amount of social interaction and other vital factors. Four tiers have been formulated to categorize it:

Tier 1- It includes employees or workers who have more interactive and social work profiles, having higher risks of contracting the virus. For example- employees at hotel quarantine facilities.

Tier 2- These include employees at healthcare or medical facilities, who are required to interact with individuals, more prone to get infected.

Tier 3- Shopkeepers or store workers come under this category, who generally interact with the public.

Tier 4- Individuals working from home are included in this category, who have minimal public interaction.

Basis to issue mandates on vaccination

As per FWO and based on the above mentioned bifurcation, it is lawful and reasonable to mandate people working under Tier 1 and 2 categories to get vaccinated. While, for employees working remotely, having minimal public interaction, it is considered unreasonable to put compulsion over vaccination.

The Tier 3 category seems a bit controversial. The guidance, with respect to Tier 3 says, if the area or premise has been struck by community spread or for the store which needs to remain functional despite of lockdown, putting compulsion over such workers to get vaccinated is plausible. On the contrary, if there is no community transmission in the respective premise, it is quite unreasonable to put a mandate.

FWO acknowledges the fact that a workplace could be a blend of workers belonging to different categories, with diverse and dynamic pandemic situations with time. Fair Works rules that, in such a scenario it is not plausible to regulate each worker to get vaccinated, even if the risk is high.