In the midst of increasing vaccine policies and conflicting public advice, many businesses are more confused than ever with respect to what they can require of their employees with respect to their vaccination status.
In public statements, Prime Minister Scott Morrison has said that it will be up to individual employers to determine what steps they take with respect to vaccination of their workforce. Meanwhile, the Fair Work Ombudsman, which had initially been criticised for advising that ‘In the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus’, has now provided more detailed advice.
There will be a number of considerations that businesses will need to take into account when making decisions about Covid-19 vaccinations. First amongst those considerations will be whether there is a need to be vaccinated in order to perform the inherent requirements of his job. The need to be vaccinated in order to perform the inherent requirements of an employee’s job might arise as a result of government regulations, or as a result of your assessment of risk in the current climate, including consideration of:
- whether workers are exposed to a heightened risk of infection due to the nature of their work;
- whether workers have contact with people who would be especially vulnerable to severe disease if they contract COVID-19;
- the risk of COVID-19 spreading in the workplace – for example, some workplaces require workers to work in close proximity to one another; and
- whether workers have contact with large numbers of people, such that they could be the catalyst for a “super-spreading” event.
There are regular changes to the regulatory framework around Covid-19 vaccination which should be checked frequently, however at present NSW airport and quarantine workers are required to have Covid-19 vaccines in some circumstances. A National Cabinet decision has been taken to require Covid-19 vaccination for workers in residential aged care facilities, which has been implemented in Queensland and is expected to soon be implemented in New South Wales. In New South Wales, there are also expected to be certain vaccine requirements which would enable vaccinated workers in the more strictly locked-down areas of Sydney to return to construction work.
Prior to implementing a mandatory vaccination, like any other work health and safety decision, an employer is required to consult with its workforce. The consultation process involves sharing relevant information with workers, giving them a reasonable opportunity to express their views and contribute to the decision-making process, and taking those views into account prior to advising workers of the outcome.
Employers will also need to consider what the content of any policy will be. This includes appropriately dealing with the timeframe for implementation, evidence requirements and consideration of workers’ privacy, any potential discrimination, and dealing with how the employer will approach employees who cannot or will not be vaccinated as a result of vaccine supply, medical contraindication or other objection.
With more and more employers considering the implementation of these types of policies, it is best to seek legal advice in order to reduce any potential risks which might arise. To talk about whether your business should have a Covid-19 vaccine policy, what should be in your business’s vaccination policy, and how to implement it, please contact Nick Stevens, Luke Maroney, and Daphne Klianis.