Preamble
We are all full of hope we can bring the Covid beast under control with vaccines.
For a while, Zombie movies looked like instructional videos.
With the decision of SPC to mandate vaccination for its workforce, many employers will be considering whether they should do likewise.
What do we know about the effectiveness of vaccinations?
The results so far suggest that vaccination is not certain to prevent the vaccinated from transmitting Covid to others, but it will reduce the risk of transmission and makes it likely that the vaccinated will either not contract Covid or that it will mitigate the effect of Covid upon them.
What should businesses do as a first step?
Every business has an obligation to ensure the health and safety of their employees and customers.
Safework Australia says that businesses should conduct a risk assessment to determine which control measures are “reasonably practicable” for managing the risk of exposure to Covid.
A worker infected with Covid in the course of their employment may have a claim against their employer. An employer will be best placed to defend a claim if they have conducted and documented a thorough risk assessment of the workplace before the infection occurred.
What should a business consider in undertaking a risk assessment?
- What is the likelihood of infection? This will involve a consideration of the transmission rate in the locality at the time e.g. India v Australasia; telephone helpline v managing a mosh pit at a music festival
- What sort of work are your employees undertaking – are they more exposed than in most other workplaces? e.g. hotel quarantine or border control.
- Will your employees be working with people who are particularly vulnerable if they contract Covid? e.g. the aged, those with existing health issues.
- Is there anything about the workplace which makes it more likely that Covid may spread? g. is it difficult to socially distance? Is it a cold environment where the virus might be active longer once exhaled?
- There should be consideration of the control measures available to either manage or eliminate the risk of an infection:
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- Wearing masks
- Sanitising
- Social distancing
- Is it possible to work from home when experiencing symptoms consistent with Covid?
- Vaccination
- As to vaccination specifically – has it been recommended or directed that employees in the industry be vaccinated?
- There should be consultation with employees and any appointed health and safety representatives.
- Are the costs of those control measures proportionate to the risk? Requiring all employees to wear top of the range Hazmat suits might be more than your budget can bear.
Having considered all of these factors and taken each of these steps, you can then assess whether directing vaccination is “reasonably practicable”.
If other control measures can give reasonable protection, then it will be harder to argue that a mandatory vaccination direction to your employees will be “reasonable and lawful”.
Can you require that your employees be vaccinated?
You can certainly make such a direction if there is a Public Health Order to that effect – as from 17 September 2021 it will be mandatory for all residential aged care workers to have received a minimum first dose of a COVID-19 vaccine by this time.
Otherwise you must establish that the only way to properly discharge your duty of care to your employees and/or your customers is to require that all or a relevant part of your workforce be vaccinated.
In order to enforce a blanket requirement that your employees must be vaccinated you must establish that it is “reasonable and lawful”.
It is much more likely that you could require as a condition of new employment that any prospective worker must be vaccinated before they commence their duties.
Can an employee refuse to abide by a vaccination direction?
An employee can refuse an otherwise reasonable and lawful vaccination direction if:
- the vaccine has not been approved for use for them;
- there are valid medical reasons for refusal e.g. higher risk of blood clotting
- they can claim that you want them vaccinated for discriminatory reasons e.g. their age, gender, pregnancy or disability. An issue yet to be resolved is as to whether religious or political beliefs which under pins a refusal to vaccinate will attract protection under anti-discrimination Laws.
If an employee refuses to comply with a vaccination direction will this be grounds for lawful dismissal?
It will come down to whether the employer’s direction that the worker be vaccinated was “reasonable and lawful”.
Employees have applied to the Fair Work Commission for unfair dismissal remedies where their employment has been terminated because they have declined to follow their employer’s direction that they receive the “standard Influenza” vaccination.
A case example from “regular flu” vaccination: Barber v Goodstart Early Learning [2021] FWC 2156.
Goodstart made it policy that all of their employees had to get a flu vaccination. The policy allowed for exemption on medical grounds. Ms Barber sought an exemption. She said that she had a sensitive immune system, suffered from coeliac disease, and had suffered an adverse reaction to flu vaccination in the past.
Goodstart engaged with Ms Barber over a lengthy period, but was not satisfied that there was a proper basis for an exemption. The medical information she supplied did not support a connection between her medical conditions and the grounds of exemption claimed. Because of her continued refusal to be vaccinated, they terminated her employment.
The Fair Work Commission said that the mandatory direction for influenza vaccination was lawful and reasonable.
In determining that the policy was reasonable, the Fair Work Commission undertook an analysis that reflected a risk assessment process. It considered:
- Goodstart’s workplace health and safety obligations;
- Government advice to the child care industry encouraging vaccination (although not mandating it);
- that the vaccine, on the evidence provided, was considered effective;
- Goodstart’s business was the care of children and some of them were too young to be vaccinated.
- the relative ineffectiveness of other controls (such as masks, social distancing and strict hygiene) in a childcare environment;
- that the policy allowed for medical exemptions;
- there had been union consultation and support for the policy; and
- the cost of vaccination was covered by Goodstart. This is certainly a factor to keep in mind – make is as easy as possible for your employees to get vaccinated: pay for vaccination, allow them time off work to get vaccinated. This will make any “direction” more “reasonable”.
Before disciplining an employee you must always follow a fair process. The starting point would be discussion with them aimed at getting to the bottom of their reasons for refusal and seeking substantiation or verification of any basis for refusal, e.g. health issues.
There should be an attempt to reach a resolution with them, short of termination e.g. change working arrangements, changing their work duties, before considering termination of their employment.
Can an employer require that unvaccinated employees continue to work from home?
Yes – if supported by a risk assessment that demonstrates that this is best available risk mitigation strategy.
Short of this, the worker might allege that this amounts to a form of adverse action, which might be actionable in the Fair Work Commission in its General Protections jurisdiction.
Can an employee refuse to attend their workplace if some of their co-employees have not been vaccinated?
This depends upon whether the employee can establish a reasonable concern that attending at the workplace might expose them to a serious risk of harm.
It is unlikely that an employee could refuse to attend their workplace because some co-employees are not vaccinated because:
- vaccination is not mandatory across the board and many workplaces will not be able to require that their employees be vaccinated; and
- some of their co-employees may be able to establish a legitimate reason for not being vaccinated, e.g. not being eligible for vaccination.
However, if they have previously been working effectively from home during earlier stricter Covid periods, it may be difficult for the employer to deny such a request.
Keep in mind the general right for some employees to request flexible working arrangement, including working from home if they are:
- federal system employees; and
- have child care or carer’s responsibilities, or
- have a disability; or
- are over 55,
unless the employer can decline on “reasonable business grounds”, such as:
- it would be too costly;
- it would require that the working arrangements of other employees be changed; or
- there would likely be a loss of productivity or an adverse effect upon customer service.
