Should you vaccinate your staff?

Thursday, 05 August 2021

Zilla Efrat photo
Zilla Efrat

    As large companies such as Westpac, Commonwealth Bank and fruit and vegetable processor SPC announce workplace vaccination programs and the government encourages big business to get involved in vaccine rollouts for staff, questions remain about the grey areas of workplace vaccination policies. We look at developments in the space as the picture unfolds.

    Big business is keen to get involved in speeding up the COVID-19 vaccine rollout, but what role can it play?

    In the past few days, two large banks and a sizeable SME have announced the terms of their workplace vaccine rollout programs, which will be the first private sector test cases in the country.

    Shepparton food processor SPC is the first company in Australia to mandate COVID-19 vaccination of all staff and visitors. The Shepparton-based cannery wants all its 450 onsite workers to be fully vaccinated by November, in what could be a legal test case for the country.

    SPC chair Hussein Rifai told the ABC that SPC will give its staff paid vaccination leave and up to two days of special leave to recover if they become unwell after receiving the shot. They have six weeks to book their first vaccination or risk being barred from on-site work.

    "We believe that the only way that we can get out and protect our employees and our customers, and the communities in which we work, is to go to the vaccine," he said.

    Westpac will also begin a pilot program in the worst pandemic-affected areas of Sydney to vaccinate staff and families. The bank designed the scheme in partnership with the federal government’s Operation COVID Shield to complement the existing vaccine rollout.

    The pilot includes onsite workplace vaccination hubs for some employees in South West and Western Sydney. Westpac chief executive Peter King said in a statement that staff can book appointments from August and the health and safety of the bank’s employees is a top priority.

    “We are committed to doing what we can to get more people jabbed and the vaccination rates at the levels they need to be for lockdowns to lift. With around 10,000 Westpac employees living in the eight most impacted Sydney LGAs, it is a heartland area for our organisation.”

    The Commonwealth Bank will begin offering the vaccine through its own program to staff in customer-facing roles in impacted Sydney local government areas as soon as next week (ie. from Monday August 9). CBA CEO Matt Comyn said the bank had been working closely with the federal government taskforce on its program.

    “The national roll-out program offers a clear pathway out of the current lockdowns while helping the country’s recovery from the health, social and economic impacts of COVID-19 more quickly,” Comyn said in a statement.

    Federal government updates settings

    In a recent national cabinet statement, Prime Minister Scott Morrison reiterated that vaccines should remain “voluntary and free” and that businesses have a legal obligation to keep workplaces safe and to minimise pandemic risks.

    He said national cabinet had received advice from Solicitor-General Dr Stephen Donaghue QC on the use of vaccinations in the workplace. In the absence of public health orders, contractual obligations or industrial instruments, employers can only mandate that staff be vaccinated through a “lawful and reasonable direction”.

    “Decisions to require COVID-19 vaccinations for employees will be a matter for individual business, taking into account their particular circumstances and their obligations under safety, anti-discrimination and privacy laws,” Morrison said.

    “Businesses are encouraged to review guidance provided by the Fair Work Ombudsman and Safe Work Australia in considering what directions may be lawful and reasonable, and the approach to keeping workplaces safe through the use of vaccinations.”

    In early July, Treasurer Josh Frydenberg met with several of Australia’s biggest companies to see how they could help. He says they brought a range of "exciting and interesting" ideas to the table, including helping with the logistics of the rollout and providing incentives.

    The initiatives are positive, but in general, Australian vaccination numbers remain low. By August more than 18 million people had received their first dose (40.96 per cent of 16+) and about four million were fully vaccinated (19.23 per cent of 16+). However, Australian numbers lag behind those of the European Union, Japan, UK and US.

    At the end of July, national cabinet agreed in-principle to an updated four-step plan to move Australia from its current pre-vaccination settings to post-vaccination settings. Prime Minister Scott Morrison said more than 70 per cent of eligible Australians would need to be fully vaccinated against COVID-19 before Australia could progress to the next step. While lockdowns could still be possible once Australia reached the 70 per cent target, they would be “less likely”. Morrison added that 80 per cent of the eligible population would need to be vaccinated before broad-based metropolitan-wide lockdowns became a thing of the past. But getting to these levels is challenging.

    The grey areas

    In Australia, the main public sector groups that will require vaccinations are those employed in aged care (from mid-September) and healthcare. But Morrison has backed away from making vaccines compulsory.

    “A vaccination is an assault — you are stabbing someone with a needle,” explains Jamie McPherson, a partner at HBA Legal. “Generally, for any vaccination, whether it’s for COVID-19, flu, smallpox or otherwise, you require the person’s consent to do it. That’s from a medical point of view, as well as in terms of employment contracts. The only way around this is if a vaccination is legislated. We haven’t seen legislation in Australia for vaccinations, but we’ve seen health directions. A health direction is not a piece of legislation, but it’s given the power of legislation. If a health direction is mandatory, that overrides the consent.”

    If there is no legislation, says McPherson, employers could be accused of discrimination because employees often resist vaccinations on religious or medical grounds, or if pregnant. However, he points to two Fair Work Commission (FWC) rulings last year, which held that an employer could give a reasonable direction to an employee to do something and if the employee fails to do it, that person’s employment can be terminated.

    In November 2020, the FWC dismissed an employee’s unfair dismissal claim for being terminated for refusing to have a flu vaccination, citing non-medical grounds. The employee was a childcare worker who worked for an early learning company that in April 2020 made flu vaccinations a condition of employment, but did allow exceptions on medical grounds.

    In another FWC case, a care assistant declined to get a flu shot because she believed she had an adverse reaction to a flu shot as a child. She did not produce supporting evidence for a medical exemption, which resulted in her employer no longer rostering her for work.

    Charles Power, a partner at Holding Redlich, says cases like these make it clear that employers implementing a reasonable and proportionate policy requiring mandatory vaccinations in a fair manner can successfully defend an unfair dismissal claim made by an employee who refuses to comply. “A factor assisting the employer in each case was the fact that the people served by the business — parents of young children in early learning centres and elderly people receiving home care services — had a reasonable expectation that workers serving them would have the flu shot, says Power.

    “In the absence of a clear legislated mandate for employers to implement compulsory vaccination policies, businesses will need to look at their safety obligations and customer demand to justify such a policy. If the risk of infection at the workplace is sufficiently great, for example, hotel quarantine, or the consequences for the business and its customers sufficiently dire, for example, in aged care, then a mandatory vaccination policy is likely to be justified by work, health and safety legislation.”

    McPherson observes that many organisations are trying to encourage to employees to get vaccinated, for example, by giving them paid leave to do it. This was certainly the case for some of the businesses contacted in July for this article, including Qantas, Wesfarmers and Woolworths.

    From a legal perspective, McPherson says a COVID-19 vaccine is no different to a flu vaccine. Employers have been arranging for nurses to come in to vaccinate staff for flu and there’s no reason why they wouldn’t do this for COVID-19.

    However, he adds: “If employers are going to provide a health service, there are two aspects to that from a liability perspective. They need to make sure that they are not swimming outside their lane. They must also ensure that whoever is performing the role is properly qualified and has all the systems of a healthcare clinic in place.”

    Mandatory vaccinations: airlines next?

    In late May, regional carrier Alliance Airlines, which specialises in flights to and from mining sites, became the first Australian airline to insist all employees be immunised for both flu and COVID-19, or face appropriate disciplinary action if they don’t have a valid legal or medical reason.

    Qantas and Virgin would like to follow suit. Qantas CEO Alan Joyce has called for governments to mandate that all airline staff to be vaccinated.

    In a recent statement, Qantas said: “While all the data shows that the risk of COVID-19 transmission onboard aircraft remains very low, and there are many safeguards at airports, nothing reduces the risk to health like the vaccines approved for use in Australia. That’s critical for our frontline teams, who come into contact with thousands of people each day. The Qantas Group is responsible for an essential service, meaning that we need to guard against severe disruptions. We’ve seen that just one COVID-19 positive employee can inadvertently shut down a freight facility or passenger terminal, which can have a big impact on the broader community and economy.”

    The airline adds that mandatory vaccinations are already happening in several jurisdictions. “The NSW, South Australian and New Zealand governments have made vaccines mandatory for aviation workers supporting international services. Other states are looking at taking similar steps, including for domestic… We understand there are a lot of complicating factors for our people — including access to the vaccine and those who don’t want the vaccine or still have unanswered questions about it. But we need to find a path through those challenges if aviation is to return to normal.”

    However, Power says a strict No Jab, No Job policy will never work. “A mandatory vaccination policy will only be defensible and enforceable if it allows exceptions on valid medical grounds and enables consultation about ways to keep in employment an employee with valid grounds to object to vaccination.”

    Big businesses set to lend a hand

    Some of Australia’s biggest companies have voiced their interest in helping the vaccine rollout. “Obviously, the support that the warehousing, logistics and transport industry can give to ensuring vaccine supply is a good start,” says Power. “But there is an understandable reticence in workplaces becoming vaccination hubs, given the potential workers’ compensation risk. This shouldn’t be overstated, however. In the vast majority of case, the worst of the symptoms flowing from vaccination will be fatigue, headache, nausea, dizziness or redness lasting 48 hours. These are unlikely to lead to valid workers’ compensation claims.”

    Woolworths CEO Brad Banducci says, “As one of Australia’s largest private employers, we’d welcome the opportunity to assist with the vaccine rollout among our team, particularly for frontline teams in our distribution centres and stores who are providing an essential service to local Australian communities.”

    Along with ALDI, Coles and Metcash — which supplies IGA and Foodworks — Woolworths started working with the federal government in July to roll out targeted on-site vaccinations for team members at selected food distribution centres in response to the heightened COVID-19 situation in Western Sydney. It also began helping the NSW government provide more timely access to the vaccine through NSW Health’s Homebush Vaccination Clinic for team members working in Western Sydney’s five LGAs under enhanced lockdown.

    “We are hopeful this provides a template for the future,” says Banducci. “We’re also open to offering up our facilities to governments for public vaccine pop-ups if it’s helpful.”

    Meanwhile, Wesfarmers is also committed to doing what it can to encourage vaccination and support the vaccine rollout. It says some of its locations may be suitable as vaccination points, especially standalone sites like Bunnings and Officeworks, and in regional locations. But it cautions: “There would be a number of operational considerations that would need to be worked through on a case-by-case basis to assess whether it would be feasible.”

    Further resources:

    As boards grapple with ongoing pandemic changes, guidance is available in our AICD publication Governing Through a Crisis: Lessons from COVID-19

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