Returning to work alongside COVID-19

On August 5, 2021, SPC Australia was the first company to mandate that all staff be fully vaccinated to work on site. Since then, a raft of other Australian companies have followed suit, including Telstra and Qantas.

Can businesses mandate vaccines? And what protections can you set up to protect your company and employees? Employment and industrial lawyer Shana Schreier-Joffe answers the burning questions.

Q Can a company mandate vaccination?

If your company is in an industry where a public health order applies, for example health care, meat processing or as we’ve seen in Victoria, the construction industry, then you can rely on this and mandate that all employees are vaccinated before returning to work. In the absence of a public health order, mandating vaccination must be reasonable in the circumstances. Of course, reasonable depends on what the company does and what role the employee performs. If you’re a client-facing business and an unvaccinated employee may put the public or the viability of your business at risk, that’s a reasonable circumstance to require vaccination. It becomes trickier when you have some employees who are not client facing and some who are – then you may have a situation where you mandate vaccination for some and not others.

Another consideration is the cost to the business if you need to close for a deep clean or you’re put into isolation because someone is diagnosed with COVID-19 or is a close contact. For example, if a mining FIFO organisation had to close their premises, it could be catastrophic. The same goes for small businesses who have already had their doors shut for months during lockdown.

Q What happens if an employee refuses to be vaccinated or won’t work with unvaccinated clients?

First, in many service industries, clients or patrons need to be vaccinated to enter the premises. When it comes to industries such as financial services or law firms, the business can refuse service, but it’s a commercial risk. When an individual employee refuses, it depends on the circumstances and each situation needs to be carefully considered.

If the employee cannot do their job properly if they are unvaccinated or refuses to work with unvaccinated clients, without a compelling reason, and in circumstances where other safeguards have been put in place, then you may have grounds to terminate their employment.

Q What should employers be doing to ensure their staff are protected from negative reactions?

1. Provide training – how to ask for the information and how to defuse the situation if it becomes volatile.
2. Develop a system for escalation – the system needs to be put in place now, so your employee is not figuring it out as they go.
3. Have at least two staff members rostered for each shift – this may become a financial burden but at least for this teething period, while people get used to being asked for the information and staff get used to requesting it, ensure employees aren’t alone.

As well as the above, there should be clear signage. So, for retail spaces or hospitality venues, have a sign outside saying people will not be given entry unless they are fully vaccinated and have checked in. This takes the onus off the employee at the door.

Listen to your employees

Prior to introducing a mandatory vaccination policy, it’s critical that a company consults with staff. The consultation should cover the reason for the policy, what impact it will have, when it will start and how the company will manage if there are employees who can’t or don’t wish to be vaccinated. For example, can they be moved to non-client facing roles or work from home for the foreseeable future.

Really listen to your employees and take their concerns seriously. This is a tricky time for everyone as the world figures out how to live alongside COVID-19 in a safe yet commercially viable environment.

For more information or assistance, contact Keypoint Law (02) 8035 5200 or visit keypointlaw.com.au.
This article is not intended to constitute, and should not be treated as, legal advice.

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