The Great Vaccination Debate
Whilst I often steer clear of topical, time relevant topics, I felt this one was worth exploring today because it’s critical, it’s complex, it’s unchartered territory and for many employers it’s just plain stressful.
Can you, should you, and do you want to mandate the COVID-19 vaccination in your workplace.
I think if you asked most business owners this question 6-12 months ago most would have said they this is a personal choice issue, it’s a minefield of privacy concerns and it’s one more thing that they didn’t really want to have to make the decision about.
Fast forward to September 2021, when Victoria is in the midst of lockdown number... I’m not even sure, I think there is some kind of numbering convention that might have us at 6.7, and NSW thick into a 12 week stint that feels like it’s never going to end, employers are in a very different business environment, and mindset.
The Australian Government has always maintained that vaccinations should be free and voluntary. This is always the approach we have taken to vaccinations. But COVID-19 is different, and it’s impacting our day to day lives and livelihoods in a bigger, different and more severe way than any illness in recent history.
Over the last few months, and even more so in the last few weeks, we’ve seen vaccination against COVID-19 become mandatory for certain groups of people. In June 2021 the Federal Government ruled that all aged care workers must get vaccinated, which I don’t think anyone blinked twice about given the severe level of illness our elderly citizens suffer from when they contract the virus.
Since then, it’s been a handball of stopping short of mandating vaccines, but strongly pushing for everyone to be ‘double jabbed’.
Various State and Territory Governments moved to make vaccination compulsory for key high risk groups and workers, including aged care, healthcare and border control / quarantine workers.
Following that, the NSW Government has issued a range of ‘Public Health Orders’ requiring workers, specifically in certain industries and key areas of concern, which included in some cases construction workers and the construction centre generally.
In NSW, the ‘roadmap’ out of the current lockdown relies on vaccination, not only a 70% adult vaccination coverage overall, but also only allowing the fully vaccinated to be able to attend non essential retail, hairdressers, restaurants and alike.
It’s all well and good to say that people can’t attend as customers unless vaccinated, but where does it leave you with your employees? What are your rights, responsibilities, obligations and risks as an employer if you mandate vaccinations amongst your employees?
Can I require my employees to be vaccinated against COVID-19?
This is the million dollar question, and until very recently the Fair Work Commission had stated that it would be very unlikely that employers could mandate vaccination of employees, unless under some very specific circumstances.
This rhetoric was in line with the Government’s dialogue, that Vaccinations should be free and voluntary.
But that has all changed in recent weeks, hence the rise in confusion and frustration amongst employers and employees alike.
What the Fair Work Ombudsman has clearly stated is that there are 3 criteria for determining whether an employer can require an employee to be vaccinated, they are:
1) There is a Public Health Order (or other specific law), which requires an employee to be vaccinated;
2) The requirement to be vaccinated is permitted by an Enterprise Agreement, other Agreement, or the Employment Contract;
3) It would be lawful and reasonable for an employer to give an employee a direction to be vaccinated, which would be assessed on a case by case basis.
When Public Health Orders direct employees to be vaccinated.
As noted above, a State or Territory Health Department may create Public Health Orders which require certain groups of employees to be vaccinated.
Essentially, if there is a Public Health Order in place, this is a law, so if the Public Health Order requires employees to be vaccinated, you as the employer have an obligation to ensure that is the case. In these cases, requiring employees to be vaccinated is not only permissible, it’s a legal requirement on your part.
When Agreements or Contracts require vaccination.
We have yet to see this take effect, but the Fair Work Ombudsman has flagged that if an Enterprise Agreement or Employment Contract requires employees to be vaccinated, then in this case employers can mandate vaccination. I expect we will see many Enterprise Agreements, as they are created or renegotiated, start to have this clause included, especially when it comes to workers who are in at risk occupations, or where the spread of COVID could have a detrimental impact on the workplace.
When the direction is ‘reasonable and lawful’.
This criteria is where we really step into the grey area, and this criteria will be assessed on a case by case basis. In this instance, the Commission look at how reasonable the direction to get vaccinated is, under the circumstances, based on the work, location, the individual, the risk, the availability of vaccines and a whole range of other factors.
Common sense tells us that it would be reasonable to direct employees of aged care facilities to get vaccinated,- because we understand the risk. But is it also reasonable to direct your retail employees to be vaccinated? Many would argue absolutely, because they are customer facing. What about your office staff? The key determinants here will deal with risk of exposure, availability of vaccines, risk of transmission, and overall risk to business continuity. That being said, it’s far more likely that it would be reasonable to direct employees who are customer facing, moving between worksites, or coming into contact with different people and locations to be vaccinated, then it would be for your customer service person who works from home.
In my view, if you are considering mandating vaccination under this criteria, I would be seeking expert advice from a lawyer or HR practionier before moving forward to ensure you’re covered.
What about when our client wants to see vaccination records?
This is the newest trend I am seeing present itself, with certain premises asking businesses attending those premises to provide evidence of staff vaccination status. Whilst the legalities of this request could be debated depending on the case – if your business can’t attend a site without proving vaccination status, I would think that it’s a business continuity risk that would allow you to mandate employees to be vaccinated, but again this is far from cut and dry.
This is by no means a simple and straight forward situation, so if you as an employer are finding this tricky to navigate know that you’re not alone. In fact, if you’d like to connect with other business owners discussing this topic amongst others, I have an invitation for you.
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