managing workplace covid vaccine policy issues

COVID-19 vaccination policy issues for employers

Work health and safety and COVID vaccination

Author – Greg Mackey

The roll out of COVID-19 vaccinations in Australia presents one more challenge for small business owners. What are employers’ obligations in terms of work health and safety and vaccination? Must you ensure staff are vaccinated to reduce the risk of transmission to customers or colleagues? Can you ask about vaccination status?

When it comes to COVID-19 vaccination in the workplace, leadership may be more important than legal remedies. It is important to understand your workplace obligations, but in an uncertain and evolving environment, communicating clearly and building trust with employees will be essential.

Can you require all employees to be vaccinated?

Most employers at the moment are unlikely to be able to issue a blanket vaccination requirement. The Australian Government’s policy is still that COVID-19 vaccination is voluntary. However, in certain high-risk sectors (eg health care and quarantine facilities) legislation or public health orders may require workers to be vaccinated.

But as a general rule, Fair Work Australia considers employers are unlikely to be able to require all employees to be vaccinated against COVID-19.

Employers have an obligation to do everything reasonably practicable to minimise the risk of COVID-19 in the workplace. However Safe Work Australia concurs this will not usually extend to compulsory vaccination for all employees.

The key is to carry out a risk assessment, in consultation with employees. Look at the risks in your workplace to employees and others, and consider what steps are available to mitigate those risks. Current health advice indicates that while vaccination reduces the chances of catching COVID, even those who have been vaccinated may be at risk. So, vaccination will only be part of a COVID-safe plan, including PPE, physical distancing, and hygiene measures. Safe Work Australia sets out some of the factors to consider.

Are there any situations where staff need to be vaccinated?

It may be reasonable to specify that only staff who have been vaccinated can work in particularly high-risk environments, or with particularly vulnerable populations. This assessment should be based on public health guidance.

While the Fair Work Commission has not yet made a final ruling, it has considered this issue in the context of influenza vaccination policies. In two recent cases the Commission indicated it may be lawful and reasonable to direct that only staff who have been vaccinated can work with children or with aged care clients.

What if employees refuse to get the vaccine?

If you do have staff working in high-risk areas who are unwilling to be vaccinated, consider how you have the discussion with them and seek advice if you are concerned. Even if you think an employee is being unreasonable, treat their concerns seriously and choose your words carefully.

Take care not to breach anti-discrimination laws in your discussions. Staff may be unable to be vaccinated, or may have legitimate concerns about vaccination, on medical grounds. Encourage staff to seek medical advice, sure you consider reasonable alternatives to vaccination (transferring staff to an office rather than customer-facing role, allowing them to work from home or from another location, for example).

Can you ask about vaccination status?

An individual’s vaccination status is considered sensitive information, so you need to manage any information you collect in accordance with Australian privacy legislation.

You should only ask whether staff have been vaccinated if it is reasonably necessary to do so. The Office of the Australian Information Commissioner specifically warns employers from asking ‘just in case’.

While employees may be happy to tell you whether they have been vaccinated, you could only require an employee to disclose that information in limited circumstances. One example might be if a Public Health Order requires you to report on numbers of staff who have been vaccinated.

Without their consent, you cannot disclose anyone’s vaccination status to other workers.

Can you offer inducements for vaccination?

Yes. The Therapeutic Goods Administration has recently advised employers can offer incentives for individuals who have been fully vaccinated. The new guidance clarifies that employers can offer leave or travel expenses to facilitate vaccinations. , rewards could include things like bonus payments.

In conclusion, it’s complicated

The Fair Work Ombudsman, Safe Work Australia, and The Office of the Australian Information Commissioner all suggest employers seek legal advice if they consider they need to make vaccination mandatory or require disclosure of vaccination status.

Document all discussions with employees carefully, particularly if you have offered to facilitate vaccination or asked that only employees who have been vaccinated work in particular roles. If there were an outbreak in the workplace you would want to be able to establish you had done everything reasonable to keep employees safe.

To reiterate, it is important to keep communicating with staff as the situation evolves. Every workplace should have a COVID policy, and we advise employers to position this in the context of keeping staff safe, and the business open. Policies might still be quite simple if your environment is relatively low-risk. But having a policy enables you to start a conversation with your staff, and to adapt the policy as conditions change.

 

Greg Mackey is senior litigation solicitor in Pryor, Tzannes & Wallis’s litigation team. His vast and varied experience is a proud asset of the firm. As a barrister at the Sydney Bar for 15 years, he conducted numerous complex commercial, deceased estate and equity trials and advised a wide client profile, including public companies, small business and mums and dads. For many years, he was General Counsel to the automotive tyre industry and has worked as a senior government deceased estates and protected estates lawyer.

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