COVID-19 vaccinations are coming – what now? 5 questions for Australian employers to consider

A number of Employers now must consider the COVID-19 vaccination.  In a previous article “Can Australian Employers force an Employee to get vaccinated?”  we answered the question – yes (with some caveats) mainly around: 

  • Inherent requirements of the position  
  • Workplace health and safety obligations 
  • Reasonable and lawful directions 
  • Dealing with objections 
  • Dealing with objections around the inherent requirements of the position and medical grounds. 

We also recently appeared with our friends Willis Towers Watson on a joint webinar going into further depth around this question. 

So, what now?  

Here are 5 questions for all Employers to consider in the coming months. 

1. Have you drafted a COVID-19 vaccine policy and procedure? 

This is a crucial question. If your organisation will likely be working in industries that will require COVID-19 vaccinations or it will likely form an inherent requirement of the position, then a policy and procedure should be drafted.  On this basis a few things need to be considered: 

  • Who will draft the policy? 
  • Is the policy drafted by an Employment Lawyer?  
  • Does it link with the Employment Contract? 
  • Are there other industrial instruments to consider for example, modern award, Enterprise Agreement or even other policies and procedures? 
  • Does the policy (as it is drafted) provide for contractual or other workplace rights for the employee? If so, how can you mitigate this risk and liability? 

2. Have the workplace health and safety obligations been properly assessed? 

Have the WHS obligations been and if so what are they? 

What will be the reasonable steps required to be taken? 

For those in health and frontline worker support there will be a much higher obligations as opposed to a company that has several office workers who work from home or work remotely.  

Obligations could include: 

  • Undertaking a WHS assessment  
  • COVID-19 vaccination training  
  • Obtaining legal advice on the WHS obligations for the company  
  • Identifying all risks and reviewing and assessing the risks  

3. Has the workforce been consulted? 

If you have undertaken a consultation what was said and what documents were provided? 

Have you complied with any industrial instrument obligation such as a Modern Award or Enterprise Agreement? 

Does the employment contract or another policy provide obligations for how and when the consultation is to take place? 

4. What objections if any are there by the employee to taking the vaccine? 

By far the biggest question we receive is around what employees will say to being directed to take the COVID-19 vaccination.  

Several objections come to mind: 

  • Religious 
  • Ethnic 
  • Social  
  • Political  
  • Medical  
  • “I simply don’t want to” 
  • “it is untested”  

With all these objections and any other these questions must be overcome by the objections: 

  • Workplace health and safety obligations? 
  • Contractual obligations you may have with 3rd parties?  
  • The inherent requirements of the position?  
  • Will the direction to take the vaccine be deemed reasonable and lawful? 

5. If an Employer is considering disciplinary action what needs to be considered? 

This is a very difficult issue to traverse.  If an Employer is seriously considering disciplinary action based on a refusal to take the vaccine a few issues should be considered: 

  • Reasonable adjustments 
  • WHS obligations 
  • Discrimination legislation  
  • unfair dismissal claims 
  • general protections claims 
  • bullying claims 
  • reasonable management action  
  • natural justice and procedural fairness 
  • any other workplace rights that may have been utilised by the employee 
  • compliance of any industrial instruments regarding procedures for taking disciplinary action 

There are a number of questions to answer and if you need questions to some of these answers give NB Lawyers – Lawyers for Employers a call and take up our offer of an obligation free consultation.  Reach out via service@nb-lawyers.com.au or +61 (07) 3876 5111 to book an appointment. 

We have helped clients to: 

  • Draft a COVID-19 vaccination policy 
  • Prepare management scripts to deal with: 
  • Objections 
  • Explain the policy 
  • Answer any other questions that will come up with staff 
  • Provide legal advice on the particulars of a client’s business and industry regarding the COVID-19 vaccination especially in relation to: 
  • Workplace health and safety obligations 
  • Inherent requirements of the position 
  • Discrimination issues 
  • Dealing with medical objections 
  • Mitigating risk and liability  
  • Implementation of the policy 
  • Prepare variations to the employment contract  
  • Correspondence with 3rd parties regarding any requests or/and changes to commercial terms 

If you got value out of this article email service@nb-lawyers.com.au or click on this link to subscribe to our value added newsletter. 

Written By  

Jonathan Mamaril  

Director 

NB Lawyers – Lawyers for Employers  

jonathanm@nb-lawyers.com.au  

+61 (07) 3876 5111 

Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law at NB Lawyers – Lawyers for Employers who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers. 

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