Health orders that have made the COVID19 vaccinations mandatory for wide range of industries have left employers, no matter size, plenty of new obligations and in need of processes or approaches to handle them.
Industries and Occupations
The WA government has mandated COVID19 vaccinations for employees working in a wide selection of industries. As of 21 October that included;
On-site resource workers, Air Transport & Border Control staff, Staff working in remote Aboriginal communities, Residential and non-resident community care services (incl. Disability, mental health, homelessness, child protection etc..), corrective services, WA police, abattoirs & meat processing, emergency services.
First dose by 1 December 2021 and fully vaccinated by 31 December 2021.
Food retailers, hospitality venues, post offices, child care / day care, schools, tertiary educations, financial institutions, critical infrastructure, petrol stations, public transport, commercial transport, building maintenance and construction services.
First dose by 31 December 2021 and fully vaccinated by 31 January 2022.
More details on the industry and occupation group can be found at the WA Health site.
Employers in these industries or work groups also have a new range of obligations.
- Under these requirements, the employer or person in charge of a workplace must ensure employees are vaccinated or have an exemption.
- Employers must ensure unvaccinated staff do not enter the workplace.
- Employers are required to keep records (evidence of vaccination).
Employees also have obligations.
- Comply with direction and not to enter workplace if not vaccinated.
- Provide employer with proof of vaccination or exemption.
Fines can be applied to employees and employers for non-compliance with regard to these directions.
WA Health has a good FAQ document which offers some guidance.
A systematic implementation is key
While these directions are mandated by law, careful workplace implementation is essential to protect the rights and safety of employees and employers.
Both the FairWork Ombudsman and SafeWork Australia recommend following a consultative process when considering changes in the workplace. Vaccination requirements, whether mandated or voluntary, require a clear consultative process.
A suitable consultative process should include a number of steps such as;
- Formulate a company policy, process and alternatives in case of employee’s inability or un-willingness to be vaccinated.
- Provide written advice to the workforce of the requirement of mandatory vaccinations under health orders. While mandatory, there is also a social component involved to protect both themselves and colleagues.
- Provide advice of the mandated time frame and obligations of both employees and employers. Provide company policy on incentives or time off to get vaccinated during work hours, additional sick leave for adverse reactions etc. Discuss consequences of not following directions – including non-access to workplace, fines, changes in work responsibilities or worst case, termination.
- Scheduling times and proactively initiating discussions to identify individual concerns and alternatives.
- In cases where employees are unwilling to be vaccinated and can’t provide a valid exemption, a consultative process to look at employment alternatives should be considered.
- In the worst case, the unwillingness of the employee to follow legal Health Orders and the inability of the employee to fulfil their contractual obligations maybe sufficient grounds for termination.
It is essential when working through this process that it is well documented, fair and reasonable. The FairWork Obudsman has provide guidance on obligations regarding COVID19 vaccines, which should be consulted.
Employers will be required to collect and retain proof of vaccination or exemption from employees. An employer failing to keep adequate records maybe subject to substantial fines.
Acceptable proof of vaccination is
- Australian Government COVID19 vaccination certificate.
- Immunisation History Certificate from Australian Immunisation Register
- Medical Exemption – provided after an application to Australian Immunisation Register
- A temporary medical exemption can be requested from WA Chief Health Officer, supporting documents need to be provided on application.
Collection and keeping of such records must be in accordance with legislation and privacy requirements.
Employers mandating vaccination
While this situation has been considered for the last year, there is no definitive FWO ruling with regards to employers mandating vaccinations and their legal position if employees refuse.
All indications are that employers should follow a consultative process before deciding on mandating.
There are guidelines which an employer may consider on the FairWork site. These will need to be taken into account to see if a mandate is appropriate, fair and reasonable.
It is also clear that companies are advised to seek independent legal advice.
Pre-employment COVID19 vaccination
In cases where there is not a mandated health order, it might be possible for employers to require new employees to be vaccinated before starting work. This could be written into an employment agreement.
Employers do need to make sure this requirement is not contrary to anti-discrimination legislation.
Health orders mandating vaccinations for workers in certain industries provides definitive directions and obligtions for employers.
However, it is still critical to follow a systematic and documented consultation process. Failure to consult and document adequately may open a company to unfair dismissal claims.