Your business has been affected by lockdowns, and you’re now getting people back to the office. It’s easy. Everyone is vaccinated and you feel it is time to bring people together so you can reconnect and enjoy collaborating without the barrier of a screen.
But wait, not everyone is vaccinated. There are a couple of people who don’t want to be vaccinated, for various reasons. Now what?
This is the dilemma facing a number of businesses at the moment.
Do you simply follow the public health advice? This will be different for every location, with some areas facing fewer restrictions, and some areas with clear mandates preventing the unvaccinated from working in particular settings. In NSW for example, the health advice would mean letting everyone back into the office when unvaccinated people are allowed out.
This seems like a straightforward approach. To follow the public health advice.
It is not that simple.
This is a minefield for many businesses with some of their team concerned about coming back to an environment where they may encounter unvaccinated people on a regular basis, in a closed environment.
Of course, one way to avoid this issue is to abandon the office altogether and keep everyone working from home. However, assuming you have made the decision to come back to the office at least some of the time, there is a lot to consider.
What are the workplace safety implications?
Safework Australia advises that you should be treating COVID 19 the same way that you would treat any other workplace safety risk.
That is do a risk assessment and put in place measures to manage those risks. Part of a risk assessment is to consult with your workforce to discuss the risks involved and the mitigation procedures you have put in place to manage those risks.
Risk management for COVID 19 should include a range of measures including hygiene measures, distancing, the wearing of masks, ventilation, and cleaning. Workers also need to know what they should do if they are unwell, what symptoms to be concerned about, and how to take reasonable care for their own health and safety.
One of the other mitigants to reduce the risk of COVID 19 in the workplace is to restrict access to anyone who is not vaccinated. If you don’t do this, and someone in your workplace contracts COVID 19, and they can prove it was contracted in the workplace, then you could be questioned on whether you have taken all reasonable steps to mitigate the risk. This will have implications for workers’ compensation claims, and your liability under WHS legislation.
Hence, simply following the public health advice is not that simple.
What are other organisations doing?
For some large organisations and industries, the government has made this decision for you by mandating vaccinations for workers. In NSW and VIC, this is the case for education and care workers, aged care workers, health care workers, disability or in-home community workers, airport workers, quarantine workers, and transport workers. More information on mandatory vaccinations can be found on your local government and health websites.
In other industries not covered by this mandate we have seen a couple of the large banks announce that they are mandating vaccinations for their staff.
Maybe this is the safest way to go?
Issues around mandating vaccines.
It may seem that this is the best approach from a WHS point of view. But now you have other problems. What do you do about staff who are not vaccinated? Do you simply tell them that they need to continue to work from home? If that is going to work for your people and your organisation, then it is a solution.
Where a staff member may have to visit other organisations as part of their role, for example if you are consultant who works with your clients in their workplaces, and their workplace requires you to be vaccinated to enter, then it could be argued that you don’t meet the inherent requirements of the role. In this situation, if a staff member cannot undertake their role from home, then you will either have to find an alternate role for them or they may face termination.
It’s possible we will see a number of these issues being tested in unfair dismissal cases and/or discrimination cases in the future. It is difficult to know how these will play out until there are some precedents in place. Once there is some case law established it may be easier to decide on the best approach.
What about future hires?
All these considerations have been for existing employees. What about for your future hires? Are you going to ask whether someone is vaccinated when you interview people? Is this even legal?
Information about asking for an employee’s vaccination status is contained on the OAIC.gov website. If you do collect this information for existing employees, it must be held securely along with other employee information.
It doesn’t say anything about collecting this information for prospective employees. At this stage, it would be safe to say that in industries where the government has mandated vaccination this is clear cut. In other industries it is much more of a grey area. We can see potential for some uncomfortable conversations and claims of discrimination in the future in this area.
Interesting times for employers.
We can certainly see why a number of businesses are delaying bringing their teams back to the office, and are instead taking a wait and see approach before making some of these calls.
The issues are not as straight forward as they seem on the surface. We recommend the first step is consulting with your employees. Get an understanding of how people are feeling and make sure you hear all concerns. Create a safe space for an honest conversation.
There are always going to be some exceptions whichever way you decide to go, especially where you have some people with medical conditions making them either vulnerable to disease or unable to get vaccinated.
In those cases, you will need to decide what adjustments you can make to balance the risks, retain your valued employees, and protect the team who are coming to the office.
It’s a complicated time, and emotions can run high. Remember to keep it human.
