For more than a year we’ve lived with the widespread disruption of COVID-19 – to our collective health, businesses and overall wellbeing.
The Australian and New Zealand Governments have secured numerous vaccine agreements, including with Pfizer and BioNTech in New Zealand, and Pfizer and AstraZeneca in Australia, which roll out this week.
So…what does that mean for the workplace? Here, we examine the considerations and legalities around mandating the vaccine.
COVID-19 vaccine: the plan
Vaccinations began their official rollout in New Zealand on 20 February, and in Australia on 22 February, with 50,000 going to frontline quarantine and health workers interacting with returned international travellers, and another 30,000 going to aged and disability care staff and residents. Another 80,000 doses will be administered to the states and territories based on their percentage of the country’s population.
Once quarantine and border workers, priority frontline healthcare workers, and the staff and residents of aged-care and disability centres have had their jabs, the second round will cover the adult population, and the final round will be for those aged under 18.
All New Zealanders and Australians will have free and voluntary access to the vaccine.
Balancing safety and risks in the workplace
While there are still a number of months to go until the entire population has access to the vaccine, the time to start thinking about how it will affect your organisation is now – and safety should be front and centre.
“All businesses have an obligation to provide a safe working environment for their employees, customers and anyone else who enters the work environment,” says Karl Rozenbergs, Employment and Workplace Relations Partner at Hall & Wilcox.
“They need to consider their own individual circumstances because each workplace faces different risks,” explains Rozenbergs.
He adds that this focus on safety must also consider the risks of not taking a stance on the vaccine. “For example, a virus outbreak could cause reputational issues for some businesses, like those involved in food production.”
"The repercussions of an outbreak can be much broader than just dealing with the outbreak itself, as it might become a brand issue regarding the quality of the product."
“There’s also a cultural risk. Say an employee contracts the virus and people don’t want to come into the office. Even though they may be able to work from home productively, there’s still the question of what culture you want to cultivate, which can be impacted by potential delays in collaboration and development when your team isn’t in one place,” says Rozenbergs.
The legalities around mandating the vaccine
There’s no precedent for a vaccine rollout of this size and of such importance to national health, and Rozenbergs says that’s what makes the notion of mandating the vaccine such a complex issue.
“While you can’t force someone to get the vaccine, an employer does have the right to direct their employees to take a certain action if it is lawful and reasonable."
“In this case, it is ultimately a health and safety issue. If the employer is an aged-care provider for example, it might be lawful and reasonable to mandate the vaccine because there are risks they need to avoid that simply don’t apply to other businesses. However, in a regular office environment without that same level of risk, it may be harder to mandate,” Rozenbergs explains.
There are also other considerations. An individual may require a medical exemption for not getting the vaccine if taking the vaccine meant they would go into anaphylactic shock. Employers’ directions would need to be able to accommodate situations like that in order to be reasonable.
“But then comes the bigger question of how you accommodate that individual. Do you have them work from home, or do you redeploy them to another part of the business where there is less risk? Or perhaps you just rely on social distancing, masks and sanitisation to control the risks?” asks Rozenbergs.
It’s a complicated process and the journey will be different for every employer, with so many factors to take into consideration.
The most important step? Start defining a strategy now.
What to consider if you do decide to mandate
1. Communication strategy
Consider how you’ll explain to your employees why you require them to get the jab, and clearly outline the alternatives for those who don’t want to. Ensure you give your staff an opportunity to ask questions, voice their concerns, or request a private meeting to discuss the issue further.
2. Vaccine policy
“Every business should have a policy,” Rozenbergs says, explaining that your policy will need to explicitly outline a few key factors:
- Will staff be able to get the vaccine on site?
- Will they be permitted time off to get the vaccine off-site?
- If they claim to have already had it, will they need to provide evidence from a doctor?
- Will those health records be kept in the company’s records?
- What happens if someone refuses the vaccine? Ensure there’s a clear process in place if an employee does refuse – this should include allowing an opportunity for discussion so staff can explain their reasons for refusal and you can outline what will happen going forward (for example, changes to their working arrangements or environment)
So…where to now?
While this may seem overwhelming, take comfort in the fact that every organisation is in the same boat, finding their way in unchartered territory.
To ensure the uptake of the new COVID-19 vaccinations in your workplace is as smooth – and lawful – as possible, always confer with your board, legal and HR departments, create a robust policy around how your business will manage the vaccine, and ensure your employees understand their rights and obligations as soon as possible.
[Disclaimer] This information is general in nature and does not constitute legal advice.
Karl Rozenbergs
Karl Rozenbergs is an Employment and Workplace Relations Partner at Hall & Wilcox. With over 25 years of experience, he advises his clients across a broad range of employment and industrial issues including advice on negotiating and implementing enterprise agreements, defending unfair dismissal claims, discrimination claims and contractual disputes.
Karl has defended and successfully resolved various unfair dismissal claims involving employee misconduct, bullying and disciplinary issues in the Fair Work Commission. Karl is a Recommended Lawyer in The Legal 500 Asia Pacific for Labour and Employment in 2021.
