Vaccinations and the workplace

O*NO! With more COVID cases springing up and lockdowns becoming more common, employers are increasingly having to toe the line between promoting their employees safety while respecting their choices. So, what are the rights and obligation in the workplace vis-à-vis vaccinations?

Government policy

Most people are aware of the Australian government actively promoting to have as many Australians as possible vaccinated against COVID-19, with the vaccinations being free and on a voluntary basis. The overarching idea is that being vaccinated is the best protection for each Australian as well as for community protection.

Given the fact that COVID vaccinations aren’t mandatory and that if you are employed you have a daily risk of infection by being on contact with colleagues and/or clients in a workplace, what are your obligations as an employer?

Workplace industry

Depending on the level of contact employees have with persons who are particularly vulnerable to the effects of COVID (e.g. elderly persons or persons with medical conditions), you may work in an industry that requires employees to be vaccinated. One such example are residential aged care workers being required to be fully vaccinated against COVID from 17 September 2021.

The more common workplaces, whilst having contact with the general public and their colleagues, aren’t in such close contact with parts of the population most vulnerable to the effects of COVID. In these instances employers may be considering implementing their own workplace policy about COVID if they haven’t already.

Work Health and Safety

Employers have a duty under WHS laws to eliminate or reduce as much as possible the risk of exposure to COVID-19 in the workplace and COVID vaccines can assist in controlling the risk of COVID in the workplace.

Before any such workplace policy is introduced, it is important to review the award or enterprise agreement or any other agreement in place to find out if they need to consult, who they may need to consult with and who they do need to consult with.

If you have validly implemented a workplace policy requiring employees be vaccinated against COVID, you will need to cover employee travel costs and paid time off work to attend the vaccination.

Where vaccinations may be encouraged but not mandatory, employers should also think about facilitating employees to take time off work to attend vaccination appointments, such as adjusting work schedules, working from home or taking leave. Sick leave is not usually available to employees for taking time to get vaccinated as they aren’t unfit to work. However, some employers are introducing ‘vaccination leave’ which allows employees to get their vaccinations during work hours without having to take leave – this also applies to taking time off if they have a reaction after the vaccination.

Most employers won’t need to make vaccination against COVID mandatory for their employees in order to comply with WHS laws. Any WHS policies to minimise risk of exposure to COVID needs to be prepared after:

1.     conducting a risk assessment of the workplace

2.     considering what control measures can be used to minimise risks against COVID (such as physical distancing, good hygiene practices, only healthy employees attending the workplace, wearing of masks and regular cleaning of workplace)

3.     how each control measure may help

4.     consult with employees so that their employees have a chance to express their views

5.     confirm what control measure should reasonably be implemented in the workplace

If an employee refuses to attend the workplace because another employee is not vaccinated, it would be up to the employee to show they have reasonable cause to fear that carrying out their work would expose them to serious risk from an immediate or imminent exposure to COVID. Generally, this concern would be difficult to provide in respect of being in the same workplace as someone who is not vaccinated.

The same applies for those who are considering requiring clients or visitors for proof of vaccination; it is unlikely WHS laws will assist you in showing there is cause to require this.

So, what happens if one of your employees contracts COVID? The employee may be entitled to workers comp if they contract COVID while they’re at work.

Vaccinations in real estate industry

At this time, it is unlikely requiring employees of a real estate agency to be vaccinated is a reasonably practical control measure against COVID and real estate agencies haven’t been assessed at this time by public health experts as being recommended to have a mandatory vaccine. It is also important to also keep in mind that not everyone can have a vaccination due to medical reasons and/or availability of vaccines. However, it must be noted that in some instances, tenants, landlords, and vendors have asked for proof of vaccination before dealing with real estate agents. This in itself carries several legal implications but is an issue too wide for this article and will be covered in a future blog.

So, if you are thinking about implementing a mandatory workplace vaccination policy you should be adopting the WHS policy steps outlined above and, as part of the risk assessment step, asking yourself these questions:

·       Are health authorities recommending COVID vaccinations for real estate agents?

·       Will your staff be exposed to risk of infection during their daily duties?

·       Do you work closely with persons who are vulnerable if they contract COVID?

·       How likely is it that COVID might enter your workplace?

·       If your employees are exposed to COVID are they in contact with enough people to create a large spread of infection?

·       Would requiring vaccination be unlawful in the circumstances?

Key Takeaways

• Employers have a duty under WHS laws to eliminate or reduce as much as possible the risk of exposure to COVID-19 – this may include encouraging vaccinations.

• Before implementing a COVID policy it is important to review the Award, enterprise agreement or other agreement that applies to your workplace.

• Travel costs and paid time off work to attend the vaccination will need to be covered for employees if you have implemented a workplace policy mandating COVID vaccination.

• Sick leave is generally not available for vaccination – but you can implement your own ‘vaccination leave’ to facilitate employees getting vaccinated

• At this time, real estate industry employees are not required to be vaccinated.

Your next steps

For further information or if you want to get legal experts to help review your workplace policies for your business, contact O*NO Legal at [email protected].

Boring legal stuff: This article is general information only and cannot be regarded as legal, financial or accounting advice as it does not take into account your personal circumstances. For tailored advice, please contact us. PS - congratulations if you have read this far, you must love legal disclaimers or are a sucker for punishment.