COVID-19 vaccinations and your business

Intro:
Welcome to CPA Australia's COVIDChat, a weekly podcast to answer your questions about the latest news and developments impacting business.

Gavan Ord:
Hello, I'm Gavan Ord, Senior Manager, Business and Investment Policy at CPA Australia. It's Monday the 18th of October, and you're listening to COVIDChat, bringing you this week's need-to-know information for businesses and accounting professionals. In today's episode, we're joined by Catherine Dunlop, Partner at Maddocks, who focuses on employment safety and people. Welcome, Catherine.

Catherine Dunlop:
Thank you. Thanks for having me.

Gavan Ord:
Today, we're going to focus on some of the key workplace issues surrounding COVID-19, including the vexed issue of vaccination. So let's just jump straight into it, and let's talk about some of the key workplace issues surrounding COVID-19. I think this is probably the biggest question, and I expect the answer to be a bit longer than the others, but can an employer require an employee to get vaccinated?

Catherine Dunlop:
Thanks, Gavan. The traditional position at law is that if it's justified on health and safety grounds, yes. And we've seen the Fair Work Commission in the last year and a half make that determination in relation to flu vaccinations for workers who may be passing on the flu to vulnerable people, as an example. We're yet to have a binding decision in relation to vaccination of COVID vaccines for employees. Some of you may have read what reports to be a decision of the Fair Work Commission from a few weeks ago. That's actually a dissenting judgement in a flu vaccination case, so we're yet to have a decision. So I can't give you an absolute guarantee, but what I can say is that your health and safety obligations, no matter which state you're in, are to eliminate, and only if you can't eliminate, to reduce risks to the health and safety of your employees.

Catherine Dunlop:
The advice from those who know more about this than I am is that vaccination, with other measures, but vaccination is the most effective means of stopping transmission. It doesn't mean it won't happen, but it reduces the chances of it, and it means that people are less likely to get sick if they catch COVID and they're vaccinated. And so, all of that would say, well consistent with that obligation to try and eliminate or reduce risks to health and safety, employers can issue directions to their employees if it's justified on a risk basis requiring them to be vaccinated.

Catherine Dunlop:
Now, you might be listening to this in any state or jurisdiction in Australia, and so, the answer at the moment in Western Australia might seem a bit different from the answer that you might be thinking of if you're in Melbourne or Sydney. And I think that's probably right. Some employers have taken a national approach, large national employers, but it may be that in some jurisdictions it's a bit of a wait and see, but I think at least for most of the east coast of Australia we've now, or about to, open up into a world where there'll be COVID in the community. We're not going to be in a binary world. We're either in lockdown with COVID, or we're out in the world and there's no COVID. We don't have that luxury anymore. And so, we will see cases in workplaces.

Catherine Dunlop:
People who get sick at work from COVID may well put in workers' comp claims, and that can have very significant premium impacts. And there can be huge risks in relation to things like business disruption if you have to send your entire workforce home, a range of them get sick. So there's a range of reasons not just from a strict health and safety perspective why a number of employers are requiring vaccination of their employees. I think we will soon see the outcome of some of the court challenges to that. But if they're in line with the existing case law and the approach that's been taken over many, many years in this space with vaccinations and other illnesses, then I think the answer is likely to be, yes, an employer can require an employee to be vaccinated. But I just say the caveat that we are yet to hear exactly on COVID, and we need to make sure that we've justified it on a risk basis.

Gavan Ord:
What about whether there's a public health order requiring mandatory vaccination of a worker or an occupation? What's the position there?

Catherine Dunlop:
Yeah, certainly. Well, when there's a public health order, you absolutely have to comply. There can be penalties for both the employer if they allow an unvaccinated person to work, and for the worker, if they work outside the home, when they're required to be vaccinated. And so that, to some extent, makes it a bit easier in that the decision's taken out of your hands. But some employers are doing both. So they might have public health orders in, but they also want to put a mandatory vaccination policy in which they will also extend to things like work experience students or consultants or contractors or people visiting their office. And so, it's a bit of a broader issue than just employees, but it gives you some scope to think about those things.

Gavan Ord:
And if I mandate vaccination, will I have to pay if an employee is injured?

Catherine Dunlop:
Yes, you may. The guidance from the health and safety regulators is that when there is an injury, which means more than a headache or feeling a bit unwell, but an injury arising from vaccination that's been mandated, then the employer may have to pay if there's a workers' comp claim. But I'll just make the point that you may have to pay if there's a workers' comp claim because someone gets sick from COVID. And so, either way, there may be cost and workers' comp implications involved.

Gavan Ord:
I suppose once you got down the mandating route, obviously the question arises, what happens if an employee refuses to get vaccinated?

Catherine Dunlop:
Certainly. It's a difficult one because I think we are going to see this increasingly. If you've justified your decision to require vaccination under health and safety grounds, and you've thought about it, and you're able to demonstrate that, and you've consulted with your workers about it, which you're required to do under health and safety legislation, so you've talked to them, you sought their views, may not agree with what they say, but you sought their views, you've implemented it, if an employee then fails to comply, then they're failing to comply with the lawful and reasonable direction of the employer. And that can mean that you can discipline the employee. Now, the extent of the discipline action will depend on the nature, but it may well include termination.

Catherine Dunlop:
The normal processes still apply here. We've still got to have a fair process. We've still going to engage with the employee to enable them to have a discussion. It's not simply you issue a direction, they're not vaccinated, the next day, that's it, they're gone. For many people, I think it's also an opportunity to have that dialogue. "This is really important. We want you to be safe. We're in a Delta world. The risk is real. Could you please go and speak to your GP?" What we're hearing from a lot of employers is that conversation is very fruitful when employers have that approach where they really try and work through these issues. But ultimately, it may mean that you've issued the direction, you've got someone who will not be vaccinated, and if you're concerned about risk and you've made that call that there's not a place for them anymore, you might terminate their employment. They may well then seek to challenge that decision, which is why we need to see the precedents that come out from the Fair Work Commission on this space in the next little while.

Catherine Dunlop:
But these are really difficult decisions, and they're workforce decisions too. But I would just flip it on its head for a moment as well, which is that where we're seeing employers implement mandatory vaccination policies, there's a small percentage of people who are very, very angry and upset and concerned and confused and worried. But what we're overwhelmingly hearing is that the vast majority of employees are actually delighted. They want to go to work in a vaccinated environment. They want to be safe. And so, the flip side of the fact that you might lose someone if you have a mandatory vaccination policy is that you might also lose people if you don't. And that's the complication and the dilemma that many employers are finding themselves in.

Gavan Ord:
That's a great point, and we've heard the same as well. Just in terms of disciplining an employee for not being vaccinated, now in New South Wales, the requirement to be vaccinated to go to the workplace ends on the 30th of November. So it's unvaccinated and vaccinated. Could an option be to stand down that employee during that period up until, for example, the 1st of December?

Catherine Dunlop:
It certainly could be, and some employees are subject to pandemic leave depending on the conditions of their industrial agreement, so that may well be an option. And even in Victoria where we're told by the health minister that the mandatory vaccination orders are likely to continue well into 2022, stand down may well also be appropriate. I think you need to think about what works best for you. Don't rush these decisions because you may have an employee who a few weeks later actually does go and get vaccinated and changes their mind. And so, what you really need to do is to take a slowly, slowly consultative approach to these things, including looking at options like stand down. Some employers are giving paid leave for a period. Some are paying for a GP visit. There's a range of things that you might seek to do to try and encourage the person to be vaccinated because this is actually not about wanting to see this person leave your employment, it's actually about trying to get them to be safe in your employment. And so, if you can take some of those steps, I think that will all go well. You may change their mind. And if you don't and you end up moving down a termination path, then it's much less likely that that decision you've made to terminate their employment would be challenged successfully.

Gavan Ord:
Yeah. When can you actually request evidence of a staff's vaccination status, and what would count as that proof of that explanation?

Catherine Dunlop:
Certainly. You can, and you're subject to privacy obligations here. So you're doing it for the reasons of health and safety because you've got a policy in place or because there's a requirement to comply with a government direction. The most effective means, of course, is to look at someone's vaccination certificate and also to keep a copy of it. If you do that, you need to make sure that you only use that information on a need-to-know basis, which means you use it for those purposes and no others and you store it securely. We're having issues with employers telling us that they're seeing fake certificates, or they've got a system where they require something to be uploaded and they're getting blank documents uploaded. So some employers are saying, "Look, show us on your phone. Let's get on a Teams call and actually click through to show me so that I know you know how to access it."

Catherine Dunlop:
That may be less of an issue once we hopefully have some sort of QR code/vaccination certificate app that picks all of these things up that we can use. But for the meantime, you might just be asking for that, or you might be asking for the employee to upload their vaccination certificate on the basis that you might in due course need to look at the dates to work out, for example, if you require them to also comply with recommendations about booster shots.

Gavan Ord:
You mentioned before about there's potential penalties if an employer allows an unvaccinated worker on site in certain situations. Could you just maybe expand upon that? I'm thinking about Victoria and New South Wales in particular where up until... Well, there is a requirement that only vaccinated people are allowed on a work site. What would happen if an employer just allows an unvaccinated person on the worksite?

Catherine Dunlop:
Well, if that is uncovered, if someone knows about it, it may well then be a breach of the public health orders, and you can be looking at very substantial fines in the tens to the hundred thousands of dollars. In addition, even if nothing happens, no one finds out on the day, you don't know what will happen, you don't know that that person may not have COVID or may not pass it on or someone else in the workplace doesn't have COVID. And at some point, it needs to be revealed for the purposes of contact tracing or for the purposes of a workers' comp claim. And you can then see legal consequences flow. So we have seen a varied approach to the enforcement of public health orders across Australia. Different courts, different police forces, different health departments have taken different views. But I would say as a trend, I think going forward that there will be a very dim view taken where there's been a deliberate breach of a requirement for employees to be vaccinated because of the risk profile and because we are dealing with the Delta variant.

Gavan Ord:
Yeah, and I would agree with that. Our engagement with public health departments around Australia, we see that where there's a deliberate breach, they will take firm action. And you also mentioned about the employees who are vaccinated feeling more comfortable working with fellow vaccinated employees. What about the situation where an employee refuses to attend the workplace because a coworker is unvaccinated? What are the potential situations or issues that need to be considered there?

Catherine Dunlop:
It's a really, really tricky one because there is a provision in the work health and safety legislation that applies, which I think some employers will seek to rely on, saying that they don't need to attend to the workplace, they can refuse to work in that circumstance. And it's far from clear that that provision will apply to enable them to stop work or to insist on working from home. But I think it's a bigger issue, Gavan, you're going to have disputes between vaccinated and unvaccinated workers unless you have an approach on how you're going to manage that. And we've already seen some of those issues start to arise. And you can see it from the perspective of someone who is vaccinated, who says, "I've done everything right. I'm following the public health advice which says that vaccination is the way out of this. And yes, I understand that we've got cleaning regimes and social distancing and the other things in, but vaccination is the most important way. why should I put myself at risk and my family at risk for someone who won't take that step?"

Catherine Dunlop:
So that's the way they will see it. If we then add in any complications, say that person is immunocompromised, so the vaccine may be less effective, or they have a newborn baby at home, a whole range of things which might mean that they're more concerned about the risk, they won't want to come to work, or they'll not necessarily be productive at work. They'll want to put themselves in a situation where they are more impediments for them mixing with that person. That doesn't make for a harmonious workplace. And so, there is no easy answer for dealing with someone who says, "I'm not going to come to work with unvaccinated colleagues," or how you would go about dealing with a dispute between vaccinated and unvaccinated coworkers. But I think we are going to see that that's going to require a very delicate, nuanced approach from employers, from managers, from business owners as to how they manage that. And clearly, you avoid that if you have a mandatory vaccination policy.

Gavan Ord:
Yeah, I mean, you mentioned about managing those disputes. I think for everyone listening, I think what you said is very important, take a nuanced, thoughtful approach. And I suppose the issue is if you just don't know or you're uncertain, I would suggest seek advice. So just on that, so Catherine, if listeners need answers to any of these questions or other COVID-related questions, where do you suggest they look to first?

Catherine Dunlop:
Certainly. Look, there's quite a bit of good guidance around from various regulators, but I have to say a lot of that is a little bit out of date because it was written back in July and early August when we were in that world where we were either in lockdown or we were safe, and we don't really have that now. There's a lot of material from my firm, Maddocks, and other firms online and available discussing mandatory vaccination. Most employment firms and most safety practitioners are taking a similar approach here, which is that mandatory vaccination is permissible when allowed on health and safety grounds. You allow for medical exemptions, you can require proof, and that you're going to have to manage these difficult issues arising. And so, you can find a lot of that free information online.

Catherine Dunlop:
I would say have a look at that, but ultimately, also talk to your people, talk to your workforce. You may find that you speak to them and they are all entirely on board and could not be more delighted. You might have one or two standouts, and it's then about having that conversation with them and starting to get them to think about the fact that the world is not going to be the same for them to be an unvaccinated person in what is largely going to be a world which requires vaccination to do a range of things.

Gavan Ord:
Thanks, Catherine, that was fascinating. If you've got any questions about this topic today that we have discussed or any other of CPA Australia's policy advocacy work, please email us at [email protected]. And if you've enjoyed what you heard today, please tune in again next week and tell your friends. Thank you, Catherine, for your time today, and thank you for your advice.

Catherine Dunlop:
Thank you. Stay safe.

Gavan Ord:
And from all of us at CPA Australia, thanks for listening.

Outro:
And that's our episode for this week, thanks for listening. To ensure you don't miss an episode, subscribe to the CPA Australia podcast channel on your favourite app. And for more COVID resources, guides, and information, visit cpaaustralia.com.au/covid.