To vaccinate, or not to vaccinate?

In addition to Public Health Orders (PHOs) mandating vaccination, the health and safety risks posed by COVID-19 have already seen many employers implement vaccination policies of their own. Depending on the circumstances, these policies can be issued as a lawful and reasonable direction to employees, requiring them to be vaccinated and even ‘boosted’ against COVID-19 in order to attend work. If an employee does not comply with such a direction, and reasonable alternative risk mitigation measures are not available, termination of employment might follow.

While many cases arising from employer-imposed vaccine mandates are still working their way through the Courts and Tribunals, there has been an early acceptance of an employer’s right to lawfully and reasonably require vaccination in some circumstances, bearing in mind the risk and burden of workplace transmission and the effectiveness of available vaccines.

However, employers should not implement vaccination policies on a whim. Any decision to do so must be supported by a proper risk assessment, include appropriate consultation, and be flexible enough to account for employees’ personal circumstances, including medical contraindications (where these can be accommodated) or the availability of other reasonable risk control measures (e.g. remote working).

Taking the driver’s seat

During the pandemic, employers often looked to PHOs and Government guidance for direction on what risk control measures may be necessary for their workplaces. Many restrictions arising out of PHOs have already started to lift though, and the level of Government guidance will continue to reduce.

Nevertheless, employers still need to think carefully about ongoing COVID-19 risks, given their duties under WHS legislation to implement reasonably practicable measures to eliminate or control such risks. New, creative approaches may be more readily available now that employers have greater discretion as to how they manage COVID-19 in their workplaces. These could extend to staggered or alternating work times, unique exclusion rules for positive or household cases, increasing reliance on alternatives to face-to-face contact, and periodic testing regimes.

Embracing flexibility

The pandemic required many employers to implement large-scale flexibility and remote work arrangements almost overnight. The speed of implementation and success of such arrangements should change the way employers think about flexible work moving forward.

Many employees already have a statutory right to request flexible work arrangements, with employers only able to refuse on reasonable business grounds. While concerns have often been held in relation to efficiency, productivity and resourcing, the pandemic has demonstrated the extent to which these arrangements can often work successfully. Flexible work requests are therefore likely to become more sought after (even by employees without a statutory right to seek them), and perhaps less capable of being reasonably refused.

Similar considerations arise under anti-discrimination legislation, with employers likely better equipped now to facilitate a broader range of reasonable adjustments for employees with a disability.

The post-pandemic workplace is still unveiling itself, and further decisions from the Courts and Tribunals will shed more light on the future of work from a legal and compliance perspective. However, many long-term impacts are already being observed, and employers across all industries must continue to adapt accordingly.

Further information / assistance regarding the issues raised in this article is available from the author, Elizabeth Radley – Partner, Richelle Farrar – Special Counsel, Matthew Parker – Senior Associate or your usual contact at Moray & Agnew.

Our national workplace team will be discussing the increasingly complex issues regarding COVID-19 and the workplace in our webinar on Wednesday, 23 March 2022 at 12pm AEDT. Click here to register.