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Opinion

The pointy end of mandating workplace jabs

Opinion

Many South Australian employers will be forced to make a call on mandatory COVID-19 vaccinations over the coming weeks, explains workplace relations lawyer Cassie Burfoot.

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Time is running out for employees to receive their double jab before December when the State’s borders are expected to reopen.

It’s a decision facing employers, big and small, across every industry sector – and one that isn’t being taken lightly.

A few months ago, food processing company SPC became the first employer in Australia to go public with plans to mandate COVID-19 vaccinations for staff.

In doing so, the business hit the headlines and became a lightning rod in the very public and very emotional debate that is still dividing opinion in workplaces across the country.

Fast forward to now, and many nervous South Australian employers are contemplating making the very same call on the expectation we will be living with COVID-19 cases in the community soon.

As the deadline for interstate borders to reopen draws nearer, local businesses are desperately seeking clarity on their rights and obligations in making the jab mandatory for staff.

Questions around vaccination policies are dominating the inquiries I’m receiving from business clients right across industry sectors.

There is a heightened sense of urgency to these inquiries as HR managers feel the pressure to clarify their position in time to prepare for the influx of interstate visitors and the expected increase in case numbers.

To date, most of these businesses have adopted a policy of encouragement and incentive to get staff vaccinated.

The staff surveys are being completed, gift vouchers handed out and South Australian employees have rolled up their sleeves.

However, with vaccination rates in SA still lagging behind those interstate, businesses are now looking to the next phase of their COVID-19 action plan to pick up the pace.

The majority of business owners I speak with say they would make vaccination mandatory for all staff, if they could, but they are unclear on their legal rights and responsibilities.

Determining whether such a direction would be reasonable in the eyes of the law is not straightforward.

The Fair Work Ombudsman has provided some guidance to assist employers to make such an assessment.

This involves ranking different types of work from Tier 1, where employees are faced with an increased risk of COVID-19 transmission (eg. employees involved in hotel quarantine, border control), through to Tier 4, where the risk is very low (eg. employees who work from home).

The idea is that for employees performing Tier 1 or 2 work, it is more likely that a mandatory vaccination policy would be reasonable, while the reasonableness of such a direction decreases with less risky work.

It’s the businesses I speak with that fall into Tier 3 – being work involving interaction between employees and other people such as customers – who are particularly unclear on their rights and responsibilities in relation to mandatory vaccination.

The relevance of this tier system will be tested when COVID-19 becomes more prevalent in the community and the risk of transmission in nearly all workplaces increases.

It therefore remains a case-by-case and evolving prospect which needs to take into account a range of important legal considerations including:

Work Health & Safety

Employers have a duty under WHS laws to ensure the health and safety of workers while they are at work.

In particular, employers are required to eliminate any risk to health and safety, or if this is not possible such risk must at least be minimised.

The transmission of COVID-19 is a clear WHS risk that must be eliminated or managed.

Privacy

The collection, use, disclosure and storage of vaccination information requires employers to have regard to privacy law.

Discrimination

Employers need to tread carefully in respect of employees who obtain a medical exemption so as not to infringe anti-discrimination laws.

Specifically, it will be necessary for employers to review whether being vaccinated is linked to the inherent requirements of an employee’s position or whether there are reasonable adjustments that can be made to accommodate an unvaccinated employee.

As South Australia opens up in the coming months, workplace vaccination policies won’t be out of the spotlight any time soon.

It’s also likely we’ll see some policies challenged, so it’s important for all employers to gain an understanding of their legal rights and responsibilities before going down the mandatory path.

Cassie Burfoot is a workplace relations lawyer with Adelaide-based Cowell Clarke Commercial Lawyers.

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