While 2020 is finally over, the pandemic is here to stay for the foreseeable future, and the introduction of the vaccine and return to ‘normal’ will present employers with new and different challenges. In this post we explore these difficult issues.
Can I require my employees to get the COVID-19 Vaccination?
This is becoming a very common question and a hotly debated subject as businesses try to grapple with the effects of ongoing and intermittent shutdowns on their businesses and the economy at large. At the moment, there is no one answer to this question, and the answers will likely depend on what your employees do for work and the inherent requirements of their role.
If we look to the past, it has been commonplace for some businesses to require their employees to have flu vaccinations, particularly where employees are working closely with vulnerable populations (such as in aged care).
A dismissal of a childcare worker who refused a flu vaccination has been upheld by Fair Work. In that case an employee’s refusal was due to personal preference rather than medical reasons. However, another case currently before Fair Work raises some interesting questions as it relates to the termination of an employee, working with the elderly in their homes, who refused a flu vaccination (as they had done previously during their employment) on the basis that they had suffered a severe allergic reaction to the flu vaccine when they were 7. We are watching this case closely and will report on the Commission’s findings once handed down. If you would like to stay up to date on this and other important matters you can subscribe to our blog here.
Whether an employer has recourse as against an employee who refuses to be vaccinated (whether as against the flu or COVID-19), such as by terminating their employment, will depend on the facts of each individual circumstance, including:
Why the employee refuses to be vaccinated (i.e. are their health factors at play?);
The role the employee performs;
Whether being vaccinated can be considered an ‘inherent requirement’ of their position (i.e. what is their role, and is there a particular reason to require them to be vaccinated?).
If you are thinking about requiring your employees to be vaccinated as against COVID-19 when the vaccine becomes available in Australia, we recommend that you:
First have a discussion with your employees and ascertain the attitudes of your staff. It may be that all of your staff are willing to get the vaccine, and you can instead discuss how you can assist your employees in obtaining the vaccine when it becomes available.
Try and understand the concerns of your employees who may feel unsure about taking a vaccination that has been developed in a short period of time, and about which there may be some reasonable uncertainty.
Consider if it really is an inherent requirement that your staff be vaccinated. Are your employees in the healthcare industry, or dealing with children or vulnerable people? If your staff do not regularly deal with members of the public, children or vulnerable populations, requiring your employees to get a vaccination may not be reasonable. If the employee could work remotely, this may also be a reasonable accommodation by an employer.
The Australian government has just announced approval for the Pfizer vaccine and it is anticipated it will become available in February. How long it will take to reach the general public is not known, but theoretically it might not be available to most people for some months in Australia. Once the vaccine roll-out begins, hopefully Australians will have more information at hand (including the exact vaccine(s) that will be available to them) to enable employees to satisfy themselves as to the safety of the vaccine.
We expect that this issue will be dealt with by the Fair Work Commission and potentially the courts once the vaccine is available in Australia, and we will provide updates on important decisions. If you haven't subscribed to our blog you can do so here.
What if my employees don’t want to return to the workplace?
With the transition to remote working necessitated by the pandemic, some employers may face resistance from employees in transitioning back to working from the office.
It is important to ascertain why your employees wish to continue to work from home. Is it because:
They wanted to work from home before the pandemic, and last year has demonstrated that it is feasible for them to continue to work from home?
They have health conditions, and do not wish to risk exposure by returning to the office, or they have concerns regarding measures put in place by the employer to mitigate against risks of transmission of Covid?
They use public transport to commute to and from work, and are worried about risks of exposure?
They have realised they prefer working from home?
An employee can’t refuse an employer’s direction to perform work if the direction is reasonable and in line with their employer’s legal obligations. However, examples provided by Fair Work highlight that where an employee has a reasonable concern about their health and safety or another legitimate reason, a refusal to return to an office may be reasonable.
If you are looking to manage a return to the office, it is vital that you:
Have a comprehensive Covid-Safe plan in place, and that this plan is provided to employees so that they can be comfortable in any safety measures in place;
Consider feasibility of social distancing in your offices, and the reasonableness of having all employees returning to work. For example, hot-desking work environments or offices that do not permit social distancing may be more susceptible to employees reasonably refusing to return to work (especially without evidence of a comprehensive plan to reduce risks);
Acknowledge that, especially following the outbreaks over Christmas, employees may be wary of returning to the office, particularly where use of public transport is necessary;
Consider the needs of your individual employees, particularly those with pre-existing conditions (or who live with people with pre-existing conditions) which may make some employees more cautious to exposure to the virus;
Consider the potential for your employees to be suffering from mental health issues, and be aware of the possibility for shifts in work patterns to contribute to stress and anxiety.
The team at Terri Bell & Co can help you with your workplace needs, including by providing you with advice regarding a return to work or mandatory vaccination policy. If you have any questions, please get in touch with us at firstname.lastname@example.org or give us a call on (02) 9191 9856
IMPORTANT NOTICE - The information contained in this article is not intended to be comprehensive. It is general in nature and is not intended to be used as a substitute for legal, financial or other professional advice. You must seek specific professional advice tailored to your personal circumstances before taking any action based on this article.
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