Deborah Peppard - HR Director
Can you make vaccinations mandatory in your business?
Can you require employees to prove their vaccination status?
To the first question, probably, but it depends…
To the second, yes you can…
Let me tell you more….
By now we all know that Covid-19 will be with us for a long time. It’s not going anywhere and there will be further mutations. We now must live with it.
With mandatory vaccinations required by Public Health Orders in a range of industries and states, it’s time for employers to consider what Covid-19 safety controls they wish to have in their business.
Our advice today overwhelmingly is that every business decision and approach will need to be different based on a range of factors including the location of the business, the industry, the work that individual employees do, where they need to perform the work and so on. A one size fits all approach is not appropriate in this instance. The advice is also ever-changing so we are providing this information to you in general terms based on information available to us today….
A Public Health Order applies to our Industry
If there is a Public Health Order that applies to your business, then you have a statutory requirement to follow the public health directions and ensure your employees are vaccinated accordingly. Where an employee refuses to follow your direction, they can be on a period of unpaid leave while you work through any other employment options available. Note that the employee is not considered to be ‘stood down’ in this circumstance. A stand down is a particular action taken under the Act in line with legislation around emergencies and work stoppages. It does not apply in this case, so the employee’s option will be to take a period of unpaid leave. There is no obligation on the employer to approve an unpaid leave of absence, but in this case we think it’s a prudent approach to allow the employee some time to consider their employment options.
You are also able to engage in a formal disciplinary process to address the employee’s failure to follow a reasonable and lawful direction.
No Public Health order for my industry – what options do I have?
Under the Occupational Health and Safety Act 2004, employers must identify whether there is a risk to the health and safety of their employees from exposure to COVID19 at their workplace. Where a risk is identified, employers must eliminate this risk, so far as is reasonably practicable using control measures. WorkSafe VIC as well as other states OH&S bodies considers the COVID19 vaccine to be one of several effective control measures.
Making vaccinations mandatory for employees should sit alongside a range of other controls that you have in place such as appropriate physical distancing, the use of masks, reduced or eliminated sharing of equipment where possible, encouraging use of sanitising and hand washing and QR coding into all locations, all of which are designed to keep your employees safe.
Let’s be clear – you cannot tell an employee that they must get vaccinated. That is a decision for them and their health professionals alone to make. What you may be able to tell an employee is that their continuing employment depends on them being vaccinated, and the choice is theirs, however, they will not be able to attend work unless they are vaccinated against COVID-19 and they can provide evidence of this (more on evidence later…). The difference is subtle but important – you are not providing a direction on someone’s health care; you are providing a direction on what the requirement is to attend work.
So, are you actually allowed to do this?
In most cases, the answer is yes. Telling an employee (or a potential candidate) that it is now an inherent requirement of their role to be vaccinated against COVID-19, and this is a reasonable and lawful direction provided to ensure the safety of other employees, clients and visitors. We recommend providing a fair and reasonable notice period as to this direction, and applying it only where appropriate.
For example, if your employees are currently working from home, you can’t provide them with a direction around the need to be vaccinated to continue their employment, but you can tell them that it will be a condition of continuing employment when staff return to the office, so they should make necessary arrangements now.
If an employee refuses to get vaccinated in line with your directions you will have the right to undertake a disciplinary process with that employee for failing to follow a reasonable and lawful direction regarding safety protocols in your business. Depending on the employee and the role, you may decide that the role can be done completely from home and you may be willing to make this an option. If you do, you will need to be clear that this means the employee will not be able to attend the office for any reason and will not be able to be included in any face to face social functions.
Conversely, the employee may request this as a solution but you may not think that this is a tenable option for your business and there is no obligation for you to agree to any such request to do a role from home instead of being vaccinated. You may also provide a period of unpaid leave for the employee to consider their employment options – every circumstance is different and should be carefully considered.
In any case where an employee provides a medical exemption to the vaccine, you will need to consider all available options. Being exempt from the vaccine does not mean that your policy doesn’t apply to that employee. It means that you will need to consider the role, what options can be provided, and it may well result in the employee’s employment being terminated due to not being able to perform an inherent requirement of the role. We caution you to seek advice in this instance.
How should I do this?
If you are considering making COVID-19 vaccinations mandatory in your business you should carefully consider how you will go about this. Many Awards include a consultation requirement on major workplace changes. While no Award that we have viewed expressly states anything around changes involving vaccinations, we think it’s reasonable to consult with your employees on such a significant policy anyway. Not only will this help with getting buy in and compliance with such a policy, employees who are on the fence or currently not in favour of vaccination might be swayed by hearing that a majority of their colleagues are supportive of such a policy.
In any event, consultation and communication is key in the roll out of any major change in a business, so we advise you to consider factoring it in when working through this process.
Can I ask for proof of vaccination?
Yes you can. The Privacy Act provides protection for people with regards to their personal information and how and where it is shared. However, there are a number of exemptions to the Privacy Act including one where ‘failing to disclose the information sought could lead to serious harm or death of others’.
Based on this exemption, you have the right to direct your employees to provide their COVID-19 vaccination certificate to you. You should keep this on each employee’s file, and you should also keep a register of vaccination status where it is accessible only to authorised people in the business.
Clients may begin asking you to provide proof of vaccination of any of your employees that will attend their site. They have the right to request this information and you have the right to provide it.
The last 18 months have seen business owners deal with some pretty radical changes and challenging times, especially in some states. The idea of considering mandating a vaccine for your employees will sit uncomfortably for some, while others will embrace the safety improvement and peace of mind it will bring. Whatever you decide to do, know that as always we are here to help you through and guide you as best we can as to what’s ideal and appropriate for your business.
Reach out to us via email@example.com
The advice provided above was correct as of the 29th of September 2021. With government directions changing on a regular basis, please contact the team if you require further guidance as it pertains to your individual business needs.
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