VACCINES IN THE WORKPLACE

FRANCHISE BASICS

Vaccines in the workplace

Can we mandate the Covid vaccine in the workplace?

JENNA PAULIN

Now Actually

This is the million-dollar question at the moment across the Australian employment landscape. With so much uncertainty in the marketplace as to what businesses can and cannot do, we’ll unpack some of the key points for you.

Where do businesses start?

In short, it depends on the type of business and the industry they are in. The Australian Prime Minister at time of writing has confirmed that the vaccine will not be mandated across the country. So how do businesses tackle this issue?

The Fair Work Ombudsman has provided some guidance on the matter but there are still a number of factors to be considered before a business can make the decision as to whether they can mandate the vaccine.

It comes with no surprises that there is not a specific law that requires an employee to receive a vaccination. Businesses should do a case by case assessment as to whether or not mandating the vaccination in their business is “lawful and reasonable”. There are specific circumstances where this doesn’t apply, but it is best you check with your industry body.

Fair Work has stipulated that for a direction to be lawful, it needs to comply with any Employment Contract, Modern Award or Enterprise Agreement, and any commonwealth, state or territory law that applies (for example, an anti-discrimination law or OH&S law).

There are several considerations to make when deciding if you can or should make the vaccine mandatory. Advice needs to be sought from an HR, legal, safety and operational perspective to enable a business to make an informed decision.

Such considerations might be: • the nature and industry of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service) • the extent of community transmission of Covid in the location where the

direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community • the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant • work health and safety obligations • each employee’s circumstances, including their duties and the risks associated with their work • whether employees have a legitimate reason for not being vaccinated (for example, a medical reason) • vaccine availability.

A FOUR-TIER APPROACH

Fair Work has created a broad four-tier approach to assist employers in making an informed decision regarding the Covid vaccine in the workplace. This framework seeks to address the above considerations. However, even this framework can create conflict and confusion as an employee may sit across multiple tiers or a business may have employees in several tiers.

• TIER 1 WORK: Where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control). • TIER 2 WORK: Where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care). • TIER 3 WORK: Where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services). • TIER 4 WORK: Where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

WHERE TO FROM HERE?

The “fair and reasonable” approach when making these decisions must come into play. Is your direction to mandate considered a lawful and reasonable direction? This is what it will come down to if you are challenged. Do you need to mandate the vaccine? You might find that your employees have already been vaccinated so mandating it is not necessary. It has been determined that you are able to ask your employees if they have been vaccinated. Again, privacy will come into play so you’ll need to be mindful of this.

Effectively, each business situation must be dealt with on a case by case basis. There currently isn’t any case law that we can rely upon, and given the changing landscape no one is an expert on this topic. All factors must be taken into consideration to make an informed decision on mandating the Covid vaccine in the workplace. This topic has much debate, and what is reasonable for one business is not necessarily reasonable for another. It will continue to be a contentious issue moving forward. n

Jenna Paulin is managing director of HR firm Now Actually which specialises in providing HR support for franchise networks.

Is your direction to mandate considered a lawful and reasonable direction? This is what it will come down to if you are challenged.