COVID will require employers to consider health and welfare requirements for employees in new and increasingly detailed circumstances.
This will include dealing with the complex legal, ethical and practical considerations of vaccination.
There is little current Government guidance, leaving businesses to address challenges including work health and safety, insurance protection and contractor obligations in the real world.
Australia’s employment laws and regulations can be complex when applied to real world situations. Complexity, change and adaptability are challenges that all business and their employees are having to negotiate across 2021 and into 2022. As COVID adapts into increasingly threatening strains, organisations are forced to respond with new policies and approaches to reflect our changing circumstances. Some, but not all, of those changes are either mandated or guided by Government directions, laws and responses. Additionally, not all government directions cover all situations or industries.
This leaves employers scrambling to protect their businesses, employees and customers, often without being able to rely on government guidelines, laws or legal precedents as situations emerge and change rapidly. It is clear that this is a situation we will all have to live with for some time. Planning ahead will require businesses to consider employment laws in new contexts and identify and respond to new risks in new ways. Applying previous laws and decisions isn’t always going to be appropriate, but it does provide employers with a starting point.
In anticipation of some of the challenges that businesses will continue to face in our changing times, we offer the following observations and guidance.
COVID and Workplace Implications
An Employee’s Ability to Perform the Role
It is an established principle in employment law that an employee must be capable of completing the inherent requirements of their role. That is, they must be able to do the job. Where that is not the case, there are a range of actions open to employers including performance management and, where necessary, termination.
As COVID has changed the way people are able to interact and travel, it has also changed the ability of employees to complete their duties. Indeed, some employees will be prevented from undertaking the inherent requirements of their job. For employees whose jobs require that they be able to travel interstate or even overseas; without a vaccination, it is unlikely that that will be possible. In those circumstances, an employee would have to be able to demonstrate that they could carry out their role equally effectively using other mediums, for instance, via video technology. For many that will not be possible. For example, an occupational health and safety specialist for a national company needs to be able to travel to company sites Australia-wide.
In this very different environment, previous approaches and precedents may not work. Seemingly, dramatic measures may be required.
Mandatory Vaccinations in the Workplace - Background
The Hicksons Workplace Relations Team has been closely monitoring and responding to the significant issue of workplace vaccinations for some time.
The article reviews a decision by the Fair Work Commission (FWC / the Commission) involving the refusal of a childcare centre employee to undergo a flu vaccination. As a result, the employee was terminated. The Commission upheld that termination and supported the implementation of the employer’s mandatory vaccination policy. The decision agreed that the employer had the right to dismiss an employee who did not comply with the mandatory workplace influenza vaccination policy. Importantly, this decision was specific to childcare (early education), and relied on statutory obligations unique to that industry, amongst other factors.
Although this case, and a further decision of a similar nature arising in the same industry, found that the employers were correct in their decision to terminate employees not complying with the vaccination requirements, these decisions may not extend to other industries.
COVID and Workplace Vaccinations
The situation with COVID-19 vaccinations is particularly interesting, and made more so with the emergence of increasingly virulent stains including the Delta variant. It appears that the virus has more devastating outcomes  across a wider age demographic than when in the form of the 2020 strain. It represents a genuine threat to workers in their 50s, 40s and even their 20s. Indications are that the threat is further exacerbated where individuals have pre-existing conditions related to heart or lungs. These factors become relevant for employers when making decisions about how to manage workplace implications.
Broadly, businesses need to turn their attention to appropriate ways to protect their businesses, staff and customers. This includes existing obligations under workplace health and safety legislation (see further details below) and associated ethical considerations. While it is clear that vaccination is an appropriate risk reduction strategy, application in the workplace is far more complicated.
As outlined above, existing decisions within specific industries can provide employers guidance in fairly narrow circumstances. For some sectors, indications are that Governments at different levels will continue to step in with nuanced mandates, such as the current intervention  regarding construction workers.
In some industries, it is clear that Governments will be more explicit and ensure vaccination becomes mandatory. As a notable example, in late June 2021 the National Cabinet agreed to mandating vaccination for residential aged care workers by mid-September 2021. This decision has not been without controversy, with some employers indicating that the mandate will result in employees exiting the sector rather than complying with the directive.
For businesses in other sectors, determining the appropriate course of action in relation to COVID vaccinations remains more difficult. For some organisations, enforcing a stringent vaccination (i.e. no jab – no job) policy may be desirable. For example, organisations with few clients, or where clients have prescriptive measures in place across the company (i.e. for all entrants to site to be vaccinated for COVID-19), a mandatory vaccination approach may be appropriate.
Employee Vaccinations and Workers’ Compensation
One instance where Government’s responded early to provide certainty regarding COVID in workplaces is in the case of Workers’ Compensation. In certain jobs, the Workers Compensation Act has deemed coverage for certain classes of employee (retail, educational, healthcare, etc) who sustain COVID-19 without the requirement of further proof that it occurred in the workplace (reverse onus).
However, in reducing complexity and offering additional certainty, this determination raises additional issues for employing businesses. For example, a deemed employee COVID exposure claim, where the employee is unable to return to work for many months, may result in the corresponding employer being exposed to noticeable Workers’ Compensation premium increases (i.e. a moderate to large employer that is not self-insured). In response, employers may then find it necessary to require vaccination to ensure that workers compensation premiums do not skyrocket.
This issue is particular to COVID-19 (as against the flu) because of emerging data disclosing that many people who fall ill with COVID-19 are having the longer-term ongoing disabilities (long COVID). Noting that it is the period of absence from the workplace which is the primary determinant in the increase in workers’ compensation premiums, methods of risk mitigation, such as requiring the unvaccinated to wear masks, may be necessary to control these costs (quite apart from the WH&S obligations outlined below).
Workplace Health and Safety Requirements
Perhaps the basis in law that will have the most wide-ranging impact is the general obligation that employers face every day to ensure the health and safety of their employees. Given the evolving knowledge and mitigation of COVID, how employers should respond remains an unpredictable area. It is therefore reasonable to rely on previous workplace health and safety best practice. In reference to vaccination, previous decisions of the FWC in relation to flu vaccinations continue to provide some guidance.
Interestingly, the Fair Work Commission has been quite sympathetic to employers to date in cases relating to the flu vaccine. It is not clear as to whether this practical response will translate to circumstances where an employer imposes a stringent COVID-19 vaccination policy. At some point, it is quite possible the High Court may be called upon to rule on such a matter. However, progressing the matter from the FWC to the High Court would generally involve at least a 12 to18 month period, and many of the practical decisions in industry will have been implemented in the interim. Also, the High Court may choose not to hear such a case if it believes the principles underpinning its determination are well established.
Thus, for the moment, employers have been left on their own to make their own decisions as to what measures to implement. This is particularly challenging for employers whose employees operate – at least partly – in uncontrolled environments. For example, if it is part of the inherent requirements (see above) of an employee’s role to interact both with colleagues and, more particularly, the public (particularly in an uncontrolled environment) it will almost be impossible for employers to ensure the safety of an unvaccinated employee. It would be prudent for an employer to implement policies which respond to the specific circumstance of their business, as the employer has done in the following case study.
A business employs staff that service photocopiers. This requires staff to be in and out of office towers in the industrial and commercial districts in and contiguous with the CBD’s of Sydney and Parramatta. There are not always service lifts in these buildings. The clients are not always sophisticated corporations with detailed policies and procedures. Accordingly, staff will often enter lifts with strangers.
Once on the client’s office floor, staff are often there for an hour and the client will often not be able to protect them from possible exposure to the virus. As such, we would recommend developing a policy which best minimises the risk to the employee. Depending upon the most up to date expert advice, masks may be an adequate protection. However, if such mask protection is considered deficient compared to vaccination, the policy may require such employees to be vaccinated from a certain date (for instance, 30 September 2021).
Under the policy, where employees are not vaccinated, the employer will initially look for work for them back at client’s premises. If such onsite work cannot be found, the policy would then provide the capacity to terminate the employment of those workers - as long as they continue to refuse vaccination (without a medical exemption).
In the above case study, the employer is obligated to ensure the health and safety of its employees by implementing a tailored COVID-19 safety procedure. That policy must ensure the health and safety of employees – even where the employees may disagree with the measures. It is not a defence to a prosecution against an employer for an employee failing to wear adequate PPE, for the employer to assert that the employee did not see the value in wearing it.
Although there is a general approach of good will and flexibility evident from all levels in responding to the challenges of COVID, it is reasonable to assume that may not always be the case. It is therefore prudent for employers to take measures to protect themselves, their business, their employees and their customers. Of course, consultation with their employees (and where applicable, unions) will be a key part of this journey.
Post by Hicksons Partner, Warwick Ryan.
The Hicksons Workplace Relations team will continue to monitor the evolving situations and implement best practice, practical and efficient responses for our clients. If your organisation is facing emerging challenges imposed by COVID, speak to our experienced team for guidance.