The landscape on vaccines is rapidly changing and updating, and it is largely untested by the courts.
We do not have clear black-and-white answers, which can be very challenging for small business owners.
Ryan and Seton Lawyers’ solicitor director and accredited specialist Michael Seton recently spoke with chartered accountant and business advisor Warwick Jackson about the interesting times employers find themselves in with respect to vaccines on Jackson’s Get To The Contest! Small Business Podcast.
Mr Seton discussed the constantly changing landscape around COVID-19 and vaccines for small business owners.
“I actually really don’t like the term ‘mandatory vaccination’. I consider it to be unhelpful phraseology that does not properly reflect the true state of affairs,” Mr Seton explained.
“Vaccines are not mandatory, they are not compulsory. They are simply a condition that people have to meet to engage in a range of activities – whether that be employment or otherwise.
“Employers in this space, then, are simply making it a condition of employment that an employee be vaccinated in order to carry out their role – or part of it – going forward.
“It’s the same as if they want to go and enjoy a picnic with four other adults outdoors.
Those who choose not to partake in vaccines should be afforded the freedom of choice and the dignity of making that choice. But that may come with consequences.
“If there is a real risk that an employer needs to protect against – and the assessment of that risk will be different in every industry – then one of the conditions the employee may need to meet in today’s world is vaccination.
“If the employee chooses not to be vaccinated then the employee is also choosing not to comply with the conditions of their employment,” Mr Seton said.
“This is not a new concept. Conditions of employment change with changing circumstances all the time. An easy example is pilots. As they get older, it doesn’t matter how many hours they’ve clocked up and what has come in the 20, 30 years previous, it is a condition of their employment that they undertake more rigorous and frequent testing of their skills and eyesight and the like.”
The podcast also explored the rights and obligations of small business owners, their teams and staff, and their obligations to their customers during the pandemic.
As NSW slowly starts to come out of lockdown after reaching 80% double-dose rates with respect to vaccines recently, we have seen:
- The Prime Minister’s briefing from the Solicitor-General on when employers can mandate vaccination;
- The Fair Work Ombudsman has updated its guidance on managing vaccinations in the workplace;
- Safe Work Australia has issued its own vaccination guidance;
- More industries and workers have been added to the public health orders mandating vaccination in NSW; and
- In addition, some large employers (Qantas, Virgin Australia, SPC and others) have stated that vaccination will be mandatory for all or a defined portion of their staff.
In what situations can I insist staff are vaccinated?
Industries affected by public health orders
An employer can – and indeed must – ensure its employees affected by public health orders receive vaccines, subject of course to any valid medical exemption. The affected industries and workers in NSW at the time of writing include:
- Quarantine workers;
- Transport workers;
- Airport workers;
- Residential aged care facility workers;
- Authorised workers leaving an area of concern for work;
- Construction workers who live in an area of concern;
- Certain early education and care facility workers and disability support workers who live or work in an area of concern;
- Certain health care workers;
- All employees at schools; and
- NSW Police.
The dates by which those various categories must receive vaccines differ, this list continues to grow, and local government areas of concern may change.
Outside those industries
Employers can direct employees to receive vaccines if the direction is lawful and reasonable. This is fact-dependent and requires a case-by-case assessment.
There are a range of factors that may be relevant when determining whether a direction to an employee is reasonable.
Things to take into consideration include:
- The nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service);
- The extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community;
- The effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant;
- Work health and safety obligations;
- Each employee’s circumstances, including their duties and the risks associated with their work;
- Whether employees have a legitimate reason for not being vaccinated (for example, a medical reason); and
- Vaccines availability.
When undertaking this case-by-case assessment, it may also be helpful as a general guide to divide work into 4 broad tiers:
- Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with Coronavirus (for example, employees working in hotel quarantine or border control);
- Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of Coronavirus (for example, employees working in health care or aged care);
- Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services); and
- Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
A workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time – so a ‘one size fits all’ vaccines approach likely won’t be possible for most employers.
The pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus.
An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.
An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of Coronavirus.
As noted earlier, this is all untested. However, we can take some guidance from some decisions of the Fair Work Commission that were delivered earlier this year.
In three cases involving employers requiring influenza vaccines for staff as conditions of their employment (Barber v Goodstart Learning  FWC 2156, Kimber v Sapphire Coast Community Aged Care  FWCFB 6015 and Glover v Ozcare  FWC 2989), the trend emerged that requiring an employee to receive an influenza vaccination in higher-risk industries, and being able to take action against an employee who refuses to do so is likely to be considered to be a lawful and reasonable direction that can form a valid basis for terminating employment.
Other FAQs on workplace vaccines
Can I ask staff – or prospective employees – if they are vaccinated? Can I ask for proof vaccines have been administered?
The answer will depend on the nature of the work being contemplated.
The concern when considering what questions you can ask a prospective employee in this space is whether such questions could amount to discrimination.
If it is the case that an employer can lawfully and reasonably make it a condition of employment for an existing or prospective role that the employee or candidate be vaccinated, then it is reasonable in those circumstances to ask the question and to ask for proof.
Again, the key consideration is whether it will be – or could be – a condition of their employment.
Can I ask (or in some cases must I ask) clients/customers/on-site contractors their status and insist on proof?
This question is a moving feast and will ultimately depend on what public health orders are in place at the relevant time.
At this moment, businesses who are allowing third parties onto their premises – whether that be customers at a café or tradespeople on a worksite – are required to comply with the current public health orders with respect to QR code check-ins, the use of facemasks, number of people per square metre and the like.
There are penalties for both the individual and the business for non-compliance.
If it is a requirement that people entering certain spaces be double vaccinated and there is a mechanism available for checking such as the digital vaccination certificate, then it may very well be that businesses are able and/or expected to check.
There is talk about this being incorporated into the QR code check-in procedure so that you won’t get a ‘green tick’ if you do not meet the required vaccination standard for certain premises, which would assist business owners in undertaking that process.
What are the worker’s compensation consequences if a team member catches COVID-19 at work?
Unless an employer has engaged in conduct that constitutes a significant breach of the public health orders that apply from time to time, it is difficult to conceive circumstances where this would arise.
The question has arisen as to whether an employee can refuse to attend work if a co-worker is not vaccinated?
Generally, guidance on the answer to that question has been no (with an asterisk, of course).
An employee has a statutory right to cease unsafe work if the worker has a reasonable concern that carrying out the work would expose the worker to a serious risk to their own health or safety.
While that might be true if the employee is, for example, working in an area of concern with unvaccinated workers, it is less likely to be the case in a well ventilated, socially distant workplace in an area with low cases of community transmission.
Generally an employer will be able to direct an employee to attend the workplace without concern in this regard when that option becomes available to employers (currently looking like 1 December in NSW).
Any liability for the business if a customer/client catches COVID-19?
Much like the answer above, the answer appears to be no unless there is conduct that starts to fall into the category of negligence.
What happens if an employee suffers adverse side effects as a consequence of ‘mandatory vaccines’?
The Federal Government is developing a COVID-19 Vaccine Claims Scheme to reimburse people who suffer a moderate to significant impact following an adverse reaction to an approved COVID-19 vaccine.
The vaccines scheme will be backdated to February 2021 and will cover the costs of injuries above $5,000 due to a proven moderate to serious adverse reaction to a COVID-19 vaccination.
The Federal Government is still developing a portal to submit claims and documentation, however people have been able to register an intent to claim since 6 September 2021.
What steps should small business owners take to protect themselves from being exposed on a variety of fronts (government regulations, employment issues, customer discrimination issues, other)?
Stay informed. Subscribe to industry circulars, monitor the NSW Health website and consult with experts on vaccines in the field. It may be that, by tomorrow morning, much of what I’ve discussed above has changed. That is the reality of this pandemic and we need to stay ever-vigilant.
Lastly, if an employer is considering implementing a vaccines policy requiring some or all of its employees must be vaccinated, then it should carefully consider consulting with their employees (and any relevant trade unions) prior to implementation.
Matters for consultation include what grounds may be expressly recognised for potential refusal, and what process should be adopted where employees indicate they are reluctant or refuse to receive vaccines.
If you have a concern about vaccines with respect to your employer, or you’re a small business owner with an issue concerning vaccinations, please contact our expert Central Coast lawyers offering sound legal advice and a fresh approach. Call us today to make an appointment.