Vaccination advice calls explode as employers seek help on obligations and legal implications

Published September 09, 2021 -
Vaccination Calls Rise

Small business owners are scrambling to understand the rules around the COVID-19 vaccine and their staff, with Employsure’s employer advice line receiving a 430% surge on the topic in August.

Last month saw the biggest spike in vaccination related calls since the vaccine rollout began, as employers wrestle with rules and implications of making the vaccine mandatory in their business. Employsure advisers took more calls on vaccinations in the workplace in August than in the previous seven months combined.

Over the past few months companies like SPC, Qantas and Virgin Australia have ordered all staff to get the jab, and more recently Spotlight Group has told employees to get vaccinated or miss out on their Christmas bonus. Yet the rules for smaller employers and the definition around ‘high-risk industries’ still remain murky.

“Employers are rightfully worried, particularly smaller businesses that don’t have a dedicated HR department. The number one question employers are asking is if the vaccine can be made mandatory or not, and whether or not it can result in any legal trouble down the line,” said Employsure health and safety manager Larry Drewsen.

“As it stands, those who want their staff vaccinated may see themselves hit with an unfair dismissal claim if an employee were directed to be vaccinated and sacked as a result of refusing the jab. The Fair Work Ombudsman has however, under new proposed guidelines, given the go-ahead to employers in certain ‘high-risk’ industries to mandate COVID-19 vaccinations if the direction is considered lawful and reasonable.

“There are many factors at play when determining if the direction is ‘reasonable’, such as the location of the business in Australia, vaccine availability, the prevalence of community transmission of COVID-19, employees’ individual circumstances, the risk of infection in the workplace, as well as what is set out in the relevant employment contract, award or agreement.”


Worker vaccination status:

Compiling data on which employees have been vaccinated can be beneficial for the safety of a business. While employers are unable to mandate vaccines, they can ask staff, or potential new starters what their vaccination status is, and also suggest it to them. Employee management software like BrightHR’s Vacctrak feature allows employers to monitor who is fully, partially, or not vaccinated against COVID-19 in the workplace

Workers do not however, have to tell their employer if they have been vaccinated, or even give a reason behind it. To keep on the safe side, employers should assume a worker is unvaccinated if they withhold this information, and inform that worker of their assumption.


Concerned staff:

Employers have also expressed concern on behalf of employees who refuse to work with an unvaccinated colleague. These situations may depend on the industry and type of work being performed. If there are reasonable processes and procedures put in place by the employer to allow the unvaccinated employee to not expose others to risk, then refusing to work with them may not be acceptable.

However, if there are no specific control measures that could be put in place, such as masks and other protective equipment, social distancing, regular testing and special hygiene processes, then the vaccinated may have basis to refuse working with an unvaccinated colleague.


Required COVID testing?

Forcing staff to get a COVID test is also on the radar of employers. Employers have a duty of care under WHS laws, and as such must do everything reasonably practicable to reduce the risk to health and safety in the workplace.

“If an employee has come to work or has been off sick with symptoms consistent with COVID-19, then obtaining a medical clearance, by way of a negative test result for the disease is entirely reasonable. One might say it is a mandatory element of ensuring a safe work place for other employees and customers,” continued Mr Drewsen.

“An employer could justifiably require a negative test result prior to allowing the employee to return to work for the safety of other employees and customers, and also to ensure the employee is fit to return to work. If an employee were to refuse to undertake a test in such a circumstance, they would need to establish a reason based on medical evidence for not taking one.”



Further enquiries:

Matthew Bridges

[email protected]

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