21st September, 2021
As our nation edges closer to reaching its vaccine targets, the Australian Government is appealing to employers to come up with solutions to discuss, plan and facilitate COVID-19 jabs in their workplaces.
Despite the importance of encouraging employees to receive the jab, raising public health issues in the workplace can be quite tricky from both a legal standpoint and a business culture perspective.
Legally speaking, the government has outlined a series of delicate rules and guidelines about how businesses need to approach all things relating to COVID-19 vaccines, and failure to adhere to these guidelines can lead to a host of other issues that can be difficult to navigate.
And even if you have the legal side of things down pat, dealing with sensitive issues like vaccines needs to be done with appropriate discretion to avoid division, resentment and discomfort in the workplace.
But, with the right information at hand, consulting experts at each step of the process, and by ensuring that the business’s vaccine facilitation is executed in line the with its broader values, employers have the potential to become major contributors to Australia’s ability to finally push beyond the constraints of COVID-19.
To get an understanding as to how employers should be approaching matters relating to the COVID-19 jab, we recently reached out to employment law expert Alison Baker, partner at Hall & Wilcox, whose first suggestion was for business owners to keep a close eye on the evolving government directions that regulate these issues.
“Staying up to date with the government directions as they continue to evolve will allow you to consider which rules apply to your business, and to subsequently seek legal advice on how to deal with those matters,” Baker said.
Also, the Fair Work Ombudsman has issued guidelines for workplace rights and obligations relating to the COVID-19 vaccine, which deal with a range of topics specifically relating to the COVID-19 vaccine at work.
One of the key issues raised by the Ombudsman is whether employers are allowed to mandate their employees to receive the jab, and according to the Ombudsman’s guidance, this depends on the whether a specific law, or enterprise agreement or contract, mandates vaccinations or otherwise if the direction is “lawful and reasonable”.
To determine whether an employee vaccine mandate direction is appropriate, the Fair Work Ombudsman expects the employer to consider a range of factors that influence the reasonableness of the proposed direction, including:
The Fair Work Ombudsman also provides the following four-tiered framework to help employers determine whether the nature of work is likely to justify a vaccine mandate:
The Fair Work Ombudsman flags that the reasonableness of employers’ directions for tier 3 workplaces can change in instances where either extended periods of time have passed since the last case of community transmission was detected (direction less likely to be reasonable) or where there is a substantial increase in community transmission of COVID-19 (direction more likely to be reasonable).
Some of Australia’s largest corporations have already moved forward with their own versions of vaccine mandates. In fact, airline giant Qantas has already enforced a vaccinate mandate for all of its employees, placing a 15 November jab deadline for front-line workers, and a 31 March deadline for the rest, ABC reported.
Managing employees who do not adhere to workplace directions is always challenging, and non-compliance to a direction to get vaccinated is no different.
The Fair Work Ombudsman raises the issue of non-compliance and states that it may be possible to take disciplinary action against an employee who refuses to receive the jab where they have been given a lawful and reasonable direction to do so.
The Ombudsman recommends that the employer first seeks to understand why the employee is refusing, and work through these issues with each employee on a case-by-case basis.
For instance, if the employee has a medical reason for not complying with the vaccine mandate, disciplining the employee may breach anti-discrimination laws and the employer should look for ways to enable them to conduct their work in a tier-4 business setting.
If an employee refuses to provide a reasonable justification for their non-compliance, the Ombudsman recommends that the employer seeks legal advice, and follows the relevant ‘performance management’ protocols.
Based on the criteria set out by the Fair Work Ombudsman, employers are only likely to be justified in directing an employee to get vaccinated in select scenarios.
However, in the event that a vaccine mandate is not a lawful and reasonable direction, other innovative strategies can still be deployed to create a culture among employees (and customers) where getting the jab is viewed favourably.
According to Baker, while businesses can encourage their employees to get vaccinated, care must be taken to avoid breaching any pre-existing employment agreements, discrimination laws or privacy laws in the process.
“Outside of mandating vaccines due to a public health order or where it is a lawful and reasonable direction, any other vaccine encouragement is discretionary and needs to be done in appropriate ways,” Baker said.
To get a feel for how small and medium businesses are dealing with this issue, we reached out to a number of small business owners and asked to hear about their vaccine encouragement strategy.
But, due to the sensitivity of the issue, each business owner we spoke to was apprehensive in sharing their strategy and preferred not to be viewed as a trailblazer on this issue. This reaction from small business further cements Baker’s comments on the importance of seeking tailored legal advice before proceeding with any sort of policy relating to the COVID-19 vaccine.
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There’s no question about it – the vaccine mandate topic is complex. Each industry has its own set of intricacies that need to be considered, and in some instances, the guidelines can be fairly ambiguous.
When considering your approach to mandating or encouraging vaccines at work, make sure to seek professional and tailored advice before pulling the trigger on your in-house strategy.
If your vaccine plans are well designed from a legal standpoint, and they prioritise the wellbeing of your employees while maintaining the integrity of your business and its culture, your business will be playing an integral role in ensuring that 2022 can indeed be a genuine fresh start for the country.