Written by: Larry Drewsen, Employsure Health and Safety Manager
As an increasing number of Australians roll up their sleeve to get their COVID-19 vaccination, it has caused confusion among small business owners as to what their workplace vaccination rights, responsibilities and options are. There are many aspects employers need to be aware of when tackling the issue of vaccination with their employees.
1) Can the vaccine be made mandatory?
We’ve seen many companies take different approaches throughout the year to promote the jab. In some cases, most recently with Australian company SPC, companies have mandated the COVID-19 vaccine for their employees.
Previous COVID-19 vaccine mandates have generally been made by governments under public health orders. As such, while employers like SPC may seek to mandate vaccinations for the health of their staff, there is currently no explicit law in legislation for employers to direct their employees to comply with outside of specific industries and occupations.
Those who want their staff vaccinated may see themselves hit with an unfair dismissal claim if an employee were sacked as a result of refusing the jab.
However, the Fair Work Ombudsman has, under new proposed guidelines, given the go-ahead to employers in certain ‘high-risk’ industries to mandate COVID-19 vaccinations if the direction is considered lawful and reasonable.
There are many factors at play when determining if the direction is ‘reasonable’, such as the location of the business in Australia, vaccine availability, the prevalence of community transmission of COVID-19, employees’ individual circumstances, the risk of infection in the workplace, as well as what is set out in the relevant employment contract, award or agreement. Generally, it is unlikely that a direction to be vaccinated would be reasonable if an employee worked 100% remotely. A general guideline is if the employer is unsure, they should seek legal advice.
2) If you cannot mandate, you can still encourage
Employers do have a duty of care under WHS laws and must do everything reasonably practicable to reduce the risk to health and safety in the workplace.
Vaccination can be considered as one way to achieve this but all reasonable measures to control the risk of transmission and infection should be considered. Employers must consult with workers regarding risk management strategies, which may be an excellent opportunity to discuss a vaccination program and discuss any concerns.
If employers are unable to mandate that employees receive a COVID-19 vaccine, they can encourage their employees to receive the jab. Employers can suggest staff get the vaccine, provide them with relevant government health advice, and allow them to take time off during the workday if only weekday appointments are available.
Unless it is lawful and reasonable in the circumstances for employers to require employees to disclose their vaccination status or provide a reason for their refusal to be vaccinated as part of a mandatory vaccination policy, workers do not have to tell their employer if they have been vaccinated, or even give a reason behind it.
To keep on the safe side, employers should discuss with a worker their concerns about disclosing their vaccination status or reason for refusal. If the worker was still not forthcoming, employers may need to assume the worker is unvaccinated, inform the worker of that assumption, and arrange suitable duties for the worker to accommodate the health and safety requirements of the business.
In circumstances where employers cannot reasonably direct their employees to receive the COVID-19 vaccine, employers should consult with employees who are unable, or don’t want to have the COVID-19 vaccine, and discuss alternative measures that can help them do their job safely.
3) Have an effective infection control policy
Employers have an obligation to take reasonably practicable steps to ensure a safe workplace, and public health advice indicates vaccinations are a critical component if we are to successfully come out of this pandemic. While vaccinations form part of a business’ methods of controlling the risk of infection, a business must therefore have other plans in place if they have workers who refuse to be vaccinated.
The most important thing an employer can do is incorporate an effective infection control policy based on government health advice which addresses vaccinations and subsequent immunisation programs. Staff should be reminded of existing infection control measures already in place, such as physical distancing, routine environmental cleaning, and the use of hand-sanitiser and personal protective equipment.
Find out more about building an infection control and immunisation policy here.
4) Handling vaccine misinformation in the workplace
If an employer becomes aware of vaccine misinformation in the workplace, or if the topic of vaccinations is seen to be causing conflict, it is recommended for the employer to hold a meeting with relevant employees. This gives the employer the opportunity to investigate the concerns and opinions of employees, and then base any further action off the back of that meeting.
The action that should be taken regarding misinformation is dependent on what has been said in the workplace and the subsequent meeting, the severity of what has been said, and the potential impact it could have on other employees.
If an employee is found to have purposely spread misinformation through the workplace despite a policy or direction not to do so, the business may consider disciplinary action for failure to comply with a reasonable management direction. Depending on the circumstances and provided a fair process is followed, this may give an employer grounds for dismissal either with or without notice or payment in lieu of notice.
5) Be prepared for what lies ahead
The Federal Government has stated that its policy is not to mandate COVID-19 vaccinations in Australia. While vaccinations form part of a business’ methods of controlling the risk of infection, employers must therefore have other plans in place if workers refuse.
For employers who follow SPC’s lead and make vaccines mandatory to continue on-site work, by doing so it could lead to legal challenges in the future. Employers must be prepared for that and weigh up alternatives to mandatory vaccinations if it comes to it.
If you are a business owner wanting to look further into this, Employsure has a free Vaccination Kit with templates and resources for employers.