7 October 2021
It’s been a couple of anti-lockdown protests since our last blog and we’re still scratching our heads at many things, not least the decision that the protestors chose Darryl Braithwaite’s ‘Horses’ as their sing along soundtrack. If you need a refresher, have a quick read of our previous blog on employer’s obligations regarding mandatory vaccination policies.
There is still no absolute clarity for employers as to whether you can mandate that your employees be vaccinated. Since our last update, construction workers have been added to the group whose vaccinations can be mandated in Victoria, having been deemed high risk due to the nature of their work. New directions have followed from the Victorian government, obliging employers to ensure employee vaccination records are in place, COVID Marshals are onsite at all times, and worker shift bubbles are in operation.
Because infection rates were ballooning among construction workers you’re on much more solid ground if you’re mandating that your construction worker employees to be vaccinated (no matter how many verses of ‘Horses’ they’re inclined to belt out) but in the absence of legislation that mandates vaccines, there are yet some very murky waters to be crossed.
As we discussed in our previous blog, the legal position for employers on mandatory vaccination policies continues to evolve. It’s well established that employers can give “lawful and reasonable” directions to employees, but what’s reasonable varies as the virus ebbs and flows and circumstances change. Employers still have to navigate whether mandating vaccination is lawful and reasonable in their industry, their workforce, and for each category of employee in their workforce. Where employees are “authorised workers” they’ll have to have had their first dose of a vaccine by Friday 15 October 2021 if they’re to come into work, but you’ll need to be sure that they fall within the category of authorised worker and it’s not yet entirely certain who is responsible for checking their vaccination records, and how.
There is also no case law on mandatory vaccination policies yet: but watch this space because it’s certain to be coming.
Are there any privacy obligations?
Employers do have privacy obligations to employees in relation to vaccination status records and any reasons they may have for refusing to be vaccinated.
Discussions on whether someone has received a vaccination or not has become a common theme in everyday conversations, but it is a sensitive topic and that information isn’t an employer’s to share. Employers need to approach with caution when requiring employees to provide records and reasons and to treat that information with care so as to avoid being in breach of the Privacy Act 1988.
The question of what is reasonable is going to be relevant here, too: is it reasonably necessary for an employer to ask for and obtain information about vaccinations status? It’s likely to be, but maybe not if your workforce is exclusively remote, for example.
So little is easy or absolute when it comes to navigating the legal traps of COVID-19, and employers should seek legal advice to mitigate your risks and establish what’s reasonable for you to ask of employees, other workers, and prospective employees with respect to their vaccination status.
To roll out mandatory vaccinations, or not to roll out mandatory vaccinations? That is the question.
There are (still) no laws or public health orders giving employers the power to impose mandatory vaccinations, so the question remains whether it is lawful and reasonable for an employer to require an employee to be vaccinated to come to work.
It can all seem as clear as mud but usually we find that when we unpack the detail of it all and consider what’s lawful and reasonable for a specific workforce, we can establish greater clarity and certainty about how to navigate the terrain and mitigate the risks in your workplace.
What’s vital to keep front and centre is that employers are responsible for the health and safety of their employees and that this obligation extends to physical and mental wellbeing. The recent case of Sara v G & S Sara Pty Ltd involves an employee who contracted COVID-19 during the course of his employment and, sadly, he died as a result. Sara’s case serves as precedent for future workers compensation claims brought by the estate of a deceased employee/s who have been injured as a result of COVID-19 and makes clear that employers’ responsibility is far- reaching.
This period is calamitous enough so mitigation of your risks has to be front and centre in your decision making about how to manage it all. When in doubt, we’d encourage employers to play it safe: the science is clear that this is a highly contagious disease with the potential to be fatal. You have an obligation to ensure your workers are safe which you can’t delegate. You therefore need to be very careful to do all you can to mitigate the risks of your employees or workers contracting COVID-19.
The flow on effects of COVID-19 are also significant and can’t be ignored: no Melbournian or Victorian is claiming lockdowns are good for our mental health. We’re aware that greater psychological hazards arise under lockdown and that family violence and abuse has increased. It’s also clear that employers have obligations beyond the ergonomics of their employees’ desks when people are working from home.
The world is relying on vaccination as the means to escape the lockdowns and restrictions that have swept the world and were incomprehensible before COVID-19. Desperate times call for desperate measures, but any measures must be carefully considered and employers’ actions must continue to place employee safety front and centre. There are so many uncertainties as to the measures you need to take and what your obligations are today when they may have been different yesterday.
We’re here to help you step it all through in pragmatic ways which take account of all the latest developments. We also promise not to sing ‘Horses’ – not even once. If you require any further information or clarity, get in touch with us at firstname.lastname@example.org