COVID-19 vaccinations and the workplace – Should members continue to require staff vaccinations?

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At the time of publication, there is no requirement for a fully vaccinated status for workers to attend retail work in all Australian states. It is important to be aware of changes in vaccination requirements as this may affect the safe and effective operation of members’ businesses and the discussions members have with staff concerning the matter. Despite changes to health directives that permit unvaccinated employees to attend work premises to perform duties, some members may wish only to permit fully vaccinated staff to attend the workplace. Implementing a COVID-19 vaccination policy includes containing COVID-19 transmission between staff and customers and complying with occupational or work health and safety obligations. Determining the appropriateness of a mandatory vaccination policy is outlined below. This outlines and explores some of the concerns and barriers members may have in implementing a COVID-19 vaccination policy. It is important to note that the information below is relevant when this article is published and may be subject to change.

If it is not appropriate for members to issue a mandatory vaccination policy, what other steps can a member take to ensure the health and safety of workers? i.e. non-mandatory policy, WHS measures (risk assessment and control measures)

If it is not practicable and appropriate for members to introduce a mandatory vaccination policy, members can implement other less prescriptive measures to ensure the health and safety of workers. Such measures include the provision of a nonmandatory vaccination policy. Such a policy outlines to staff the benefits of vaccination and reasons why it may benefit employees, the store, colleagues, and customers. It will explain these benefits without demanding vaccination or threatening dismissal and will state that vaccination is not mandatory. Apart from a non-mandatory vaccination policy, members may employ specific WHS measures such as risk assessment and control measures to help mitigate the potential impact of COVID-19 on the business. Such measures may include modifying tasks, implementing cleaning and hygiene protocols, and assessing the risk potential of certain scenarios.

COVID-19 Vaccination – Should members continue to require staff vaccinations?

Mandatory vaccination requirements have been removed for retail workers of supermarkets in all states. However, if it is lawful and reasonable, store owners can still require their employees to be vaccinated to attend the workplace. Before implementing any mandatory vaccination policy, members should consider balancing work health and safety obligations, privacy and other obligations to employees. If members wish to issue a mandatory vaccination policy, they must determine if it is lawful, reasonable, safe, and practicable.

‘Lawful and reasonable’

Members must ensure that directions to employees are both lawful and reasonable concerning the circumstances.

Under the Fair Work Ombudsman’s (FWO) ‘tier system’ guideline, whether it is ‘reasonable’ to mandate vaccinations depends on the interaction between staff and other individuals. Reasonableness must also be assessed on a case-bycase basis. When considering what is ‘reasonable’, you must consider the nature of the workplace, the risk of transmission, health and safety obligations, each worker’s circumstances, and whether the worker has any legitimate reason not to be vaccinated. This guidance will likely be difficult to apply in practice. Members are encouraged to contact the MGA Employment Law team for assistance.

Consultation is paramount

Members are advised that they should consult with staff before implementing a mandatory vaccination policy. Members are reminded that a mandatory vaccination policy may be advisable in some circumstances but may not be suitable for all workplaces or all employees. Members are encouraged to seek legal advice before implementing any mandatory vaccination policy.

In a recent case decided by the Fair Work Commission, an employer implemented a mandatory vaccination policy that came into effect one month from the date of announcement of the policy to give employees time to comply with the policy. Once the policy came

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into effect, 80 employees were stood down for failing to provide evidence of their vaccination or for failing to provide proof of a lawful reason for being exempt from the mandatory vaccination policy. In response, a union lodged an application to the Fair Work Commission challenging the mandatory vaccination policy. The Fair Work Commission found that there was nothing unlawful about requiring individuals to be vaccinated, and the policy was reasonable in many respects, including the following: • The policy was proportionate to the risks associated with the worldwide pandemic that is COVID-19; • It was developed based on the contact that workers have with other workers and the public; • It sought to ensure the health and safety of the workers and the public; • The implementation coincided with the risks that were in the particular state (NSW) and the local area; and • It was implemented after a significant period of encouraging staff to receive the COVID-19 vaccination.

However, despite the above, the Fair Work Commission determined that preventing access to the workplace for unvaccinated employees was unreasonable due to the inadequate level of consultation that the employer engaged in with their workers before standing them down due to the policy. The Fair Work Commission found the employer did not consult with their workers “as far as reasonably practicable” according to their obligations under the applicable work health and safety legislation. To fulfil its consultation requirements, the employer should have undertaken the following actions: • Provided employees with information relating to the reasons, rationale and data supporting the mandatory vaccination policy; and • Provided employees with a copy of the risk assessment or information

relating to the analysis that informed the company’s decision to implement the policy. This case serves as an important reminder that when members implement new policies, they must engage in genuine and meaningful consultation with staff, particularly where a failure to follow the policy can result in an employee’s inability to perform work, or disciplinary action including but not limited to termination of employment. Consultation may also necessitate providing supporting information, such as risk assessments, to employees.

Contact the Employment Law team on 1800 888 479

or legal@mga.asn.au for queries concerning mandatory vaccination policies and how to lawfully implement them.

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