• CMI Legal

COVID-19 Vaccination Rules for Businesses and Employees

As the NSW lockdown ended, businesses have reopened and there may be certain COVID-19 vaccination rules that apply to you as business owners or as employees. This article would clarify the rules that may be applicable to you.

As an employer, could you mandate your employees to be vaccinated?

Employers may only mandate their employees to be vaccinated in the following circumstances:

  1. A specific law (e.g. a state or territory public health order) requires an employee to be vaccinated. Examples of industries affected by mandatory vaccination rules include aged care, quarantine and transportation and health care;

  2. The requirement is permitted by an enterprise agreement, other registered agreement or employment contract (e.g. some employment contracts or agreements may contain terms relating to vaccinations, including COVID-19 vaccinations); or

  3. It would be lawful and reasonable for an employer to mandate their employees to be vaccinated, which is assessed on a case-by-case basis.

How is the ‘lawful and reasonable’ assessment applied?

Whether a direction for employees to be vaccinated is lawful and reasonable is fact dependent and needs to be assessed on a case-by-case basis.

When undertaking this case-by-case assessment, it may be helpful as a general guide to categorise your industry/job nature in one of the 4 broad tiers set out below:

  • Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).

  • Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).

  • Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).

  • Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

How are the different tiers interpreted?

If your industry is in the Tier 1 and Tier 2 categories, meaning the job nature creates the increased risk of employees being contracted with coronavirus, or transmitting coronavirus to a person who is particularly vulnerable, a direction for employees to be vaccinated is more likely to be reasonable.

As the line between other industries may be more blurry, industries that fall under Tier 3 or Tier 4 may experience confusion when applying the COVID-19 vaccination rules. The below information may provide some