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COVID-19 vaccination opens legal can of worms for employers

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The COVID-19 vaccine rollout could present ethical and legal headaches for employers faced with developing vaccination policies for their staff, as lawyers warn of grey areas for any business which decides its workers are required to take a shot.

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Business SA and employment lawyers have urged companies to start consulting with their staff immediately to determine whether they should develop vaccination policies to keep their workers and clients safe.

Under state law, employers have a legal obligation to make their workplace safe, including taking measures to reduce the risk of employees being exposed to COVID-19 – but there are currently no laws or public health orders in place that allow workplaces to introduce mandatory vaccination policies.

“The mere existence of the pandemic doesn’t make it automatically reasonable for an employer to direct employees to be vaccinated,” SA Law Society President Rebecca Sandford told InDaily.

“However, there may be some limited circumstances where an employer could still require employees to get the vaccine.”

It is a murky situation for employers, who are faced with an imminent vaccine rollout and competing pressures to balance workplace health and safety with an individual’s right to refuse to get vaccinated.

According to Sandford, employers must satisfy a “lawful and reasonable” test when developing workplace health and safety measures.

She said if a workplace wants to introduce a mandatory vaccination policy, it must first consider whether it is lawful, permissible under existing workplace agreements and a reasonable measure to take given the industry under which it operates.

“Each workplace has its own unique circumstances and exposure risks, and so the lawfulness of any directives they hand down would need to be considered on a case-by-case basis, unless there’s a government decree that, for example, mandates vaccinations for employees in a particular industry,” Sandford said.

“Employees’ personal circumstances may also be relevant in some cases.”

It follows a recent Fair Work Commission case instigated by a child care worker in Queensland, who claimed she was unfairly dismissed from her workplace after she refused to get the flu shot.

The case considered whether the child care centre fired the worker on “lawful and reasonable” grounds, given her refusal to get vaccinated was not due to a medical condition.

DMAW Lawyers senior associate Kylie Dunn said depending on whether laws are introduced in South Australia mandating COVID-19 vaccinations for certain industries, employers who force unwilling staff to get the COVID-19 jab could face unfair dismissal claims.

“Some employees might say no for religious reasons or medical reasons, others might just say no just because they don’t want to,” she said.

“Then really the legal question is whether or not the legal requirement to be vaccinated was a lawful and reasonable direction, and that’s going to depend on all the circumstances relevant to that particular employee at that business.”

Dunn said instead of potentially dismissing staff who refuse to get vaccinated, employers could first consider asking employees to work from home, wear a mask and socially-distance from other workers.

She said she expected most businesses would either make a decision not to have a mandatory vaccination policy or “just put their head in the sand and just think this is too hard to deal with”.

“I think in either of those circumstances there will be… part of the workforce perhaps, or perhaps stakeholders, customers, suppliers critiquing that approach,” she said.

“If it’s employees feeling like they’re not going to be safe because there is no mandatory requirement, again, that might be when you think about having those employees work from home or working in a different part of the business or at least socially-distancing from all other employees in the business to try and address their concern about their own safety.

“If it’s customers then it’s sort of a whole other issue because it’s more of a PR or a reputational concern as opposed to a legal concern with respect to a business’ health and safety duties.

“Businesses need to think about responding or putting someone out on their website in the way they usually communicate with their customers saying, ‘look, whilst we haven’t enforced a mandatory direction we are, of course, taking serious regard for our employees’ health and safety and your health and safety and these are the measures we’ve got in place to keep everyone safe’.”

Dunn recommended that businesses start thinking about whether they should introduce a vaccination policy as soon as possible.

“It’s also really important that businesses start communicating and consulting with staff about these issues because I think that there’s going to be less fall-out the more consultation there is with staff,” she said.

Business SA is currently working with the Australian Chamber of Commerce to develop advice for employers.

Policy and advocacy director Andrew McKenna said Business SA was advising companies that want to develop mandatory COVID-19 vaccination policies to first get legal advice.

“Our advice to businesses is to think ahead about whether there is a need for your employees to get vaccinated,” he said.

“We wouldn’t want our members to be getting into the situation where they dismiss staff members and it’s deemed unfair.”

South Australia is still in the first stage of the vaccine rollout, which is limited to frontline health care, medi-hotel and airport workers, as well as residents and staff of residential aged care and disability facilities.

The second phase of the rollout will begin next month with doses of the AstraZeneca vaccine targeting the APY Lands, remaining healthcare settings and other essential services personnel.

That phase will also deliver the vaccine to older people over 60 years, Aboriginal and Torres Strait Islander people more generally and adults under 60 with underlying medical conditions.

The final phase will be the broad rollout of the Novavax vaccine from September, subject to successful trials and approvals.

The Australian Bureau of Statistics earlier this month released data showing South Australians are the least likely in the country to agree that vaccines can help control the spread of COVID-19, while only half of the state’s population is willing to get vaccinated as soon as doses are available.

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