It was a mantra as familiar as Slip Slop Slap. “No hat, no play” is imprinted on the brains of anyone around a sandpit in the early 2000s. Twenty years later, the issue has moved out of the sandpit into the workplace. “No jab, no work” is the grey area threatening to become the workplace issue of the year. And beyond. In a world navigating how to live with COVID-19, should employers have the power to make vaccination compulsory?

Australian Government policy says receiving a vaccination is voluntary. But it also says the aim is to have as many Australians vaccinated as possible. The National Cabinet meeting earlier this month conceded there may be situations where it’s reasonable for employers to require an employee to be vaccinated. So far, only aged care and quarantine workers must be vaccinated. However, Prime Minister Scott Morrison also said it was ultimately up to employers. He’s ruled out making vaccines compulsory but at the same time, paved the way for employers to create their own policies. And employers already have options under existing workplace laws to stop unvaccinated people from working, or even entering their premises. It’s pretty confusing.

Some Australian companies like SPC came out early, saying unvaccinated workers aren’t welcome. It was a bold move at the time as most of the advice overwhelmingly said employers should assume they couldn’t. Then Qantas became the most high profile Australian company to say it wanted all its staff fully vaccinated before mid-November. Corporate Australia appears to be getting on board. Some of the biggest employers, including Coles and Tabcorp, say nothing is off the table in making jabs mandatory for frontline workers.

In the U.S., it’s already happening. The Department of Justice last week gave the go ahead for mandatory Covid vaccines in the workplace. And there are moves to make them compulsory for the military. Federal workers there will need to sign forms confirming they’ve been vaccinated, or face a raft of rules like weekly testing, distancing and mandatory mask wearing.

Safe Work Australia and the Fair Work Ombudsman released guidance on 19 February 2021 on the rights and obligations of employers to require employees to be vaccinated against COVID-19. At the time, it said most employers would not have a right or obligation to require employees to be vaccinated. On Thursday 12 August, Fair Work updated those guidelines. The right to mandate vaccinations will hinge on whether it is “lawful and reasonable”. Work is divided into four broad tiers with Tier 1 or 2 including quarantine, border control, health and aged care. Employer directives in those bands with the increased risk of employees being infected or giving Covid is “more likely to be reasonable”.

Safe Work is updating its guidelines as vaccines are rolled out. They’re set out, see here.

And if you want more advice, you can also go to the Workplace Health and Safety Regulator.

There are also state considerations. Employers must also comply with any state and territory public health orders that require some workers, such as those considered to be high-risk workplaces, to be vaccinated. Employers can help workers find out more information about the vaccines by directing them to https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines

Safe Work also has a checklist for other factors employers should consider:

  • the nature of the work being performed
  • the nature of the clients and other stakeholders
  • the ability to mitigate any safety risks
  • whether or not the employee can perform the inherent requirements of the role without being vaccinated
  • anti-discrimination law

There’s also the issue of incentives. Should fully vaccinated workers be prioritised for work or be able to get back to work sooner?

foundU believes prioritising the overall health and wellbeing of our teams and communities is crucial. We know there’s a lot of misinformation and unhelpful theories that thrive off fear. We encourage vaccinations, understanding it’s not easy for some people to access them at the moment. Our starting point is to listen to the advice, understand and inform. As with many issues around Covid, for employers, it’s a case of “watch this space”.