Currently, the government has not issued guidance around vaccinations for COVID-19, although they have promised to do so. It is possible under the Biosecurity Act for the government to make vaccination mandatory, but it is generally believed this will be unlikely.
With this in mind, the big question for most employers is ; Can they make vaccination a requirement of employment ? What can they do if employees refuse to be vaccinated ?
The legal advice is that employers do have the right to issue a ‘lawful’ and ‘reasonable’ direction to employees, and depending on the company and business, a vaccination maybe a reasonable order. A vaccination directive maybe easier to enforce where employees work with ‘at-risk’ individuals, for example health care, aged care and child care workers. Currently the Fair Work Commission as a number of ‘fluvax’ un-fair dismissal cases afoot, the decisions of which may provide precedence and guidance on mandatory COVID19 vaccinations.
General workplace health and safety requirements, dictate that employers are obliged to provide safe working environments to employees, and employees are also required to assist employers meet this requirement. Such expectations may prove to be the most important point for insisting employees have COVID vaccination.
6 things companies can do to prepare for vaccination
How should companies proceed in the current legal and legislative vacuum ?
Companies can analyse their business based on their employee roles and demography through the work health and safety lens, to establish some basic requirements.
Workplace situations that might be deemed higher risk and require a vaccination;
- Customer facing employees (Retail, Customer Service, Hospitality, Sales, Technical Support etc.)
- Working with high risk individuals (Healthcare, Aged Care, Education etc)
- Employees required to travel.
- High risk employees (health, age etc reasons)
- Close work environments.
It maybe that these roles or positions would have a requirement for a vaccination, as a failure to do so might mean the workplace is an unsafe environment.
It is also important to identify all human shared touch points (workbench, desks, office equipment, delivery box, railings, buttons etc) and establish protocols to minimise these touch-points during the vaccine rollout.
Review and update company pandemic policy and procedures as changes occur.
Keeping the workplace COVID safe during and after the roll-out of the vaccine will be essential.
As with all company actions during the COVID pandemic, consulting and communication prior to implementing decisions provides for better outcomes. With the risk assessment in hand, HR and management should initiate a consultative process to discuss and work through vaccination related matters with the leadership teams, the workforce and unions.
COVID Safe workplace practices have been in place for a long while and are familiar. Communication has been key for them to be accepted in the workplace. Communication will also be essential for businesses when vaccinations become available. Human resource and management teams should start to devise a communication strategy which addresses company policy and requirements on vaccination.
Record keeping will be essential. Maintaining confidential and contemporary vaccination records will for some businesses require a new protocol.
Depending on the company, proof of vaccination might be a requirement prior to recruitment. Confirmation and gaining proof of vaccination could become another pre-employment check. It may be necessary to establish a policy for exemptions (medical, religious etc) and consideration around the risk of discrimination.
Redeployment / Job restructuring / Termination
The big issue is what can or should businesses do when employees are unable or unwilling to be vaccinated. With no legislation in place and decisions from Fair Work regarding the ‘fluvax’ cases pending, a definitive approach is difficult. Nonetheless, management should start to consider redeployment, job reengineering and some organisational development options to mitigate the risk. In some cases, as has happened with ‘fluvax’ cases, termination might be the only option.
It is the time to work through various scenarios for your business and consider alternatives. Getting ahead of the curve and communicating with the workplace is a good step.
Get in touch with E.L Blue if you need a hand.