After our readers put forward some of their most pressing COVID-19 vaccination mandate questions, we asked two lawyers to respond. Here’s what they said.
Few issues are causing as much confusion and complexity right now as the COVID-19 vaccination mandate.
For companies considering rolling out a vaccination mandate, there’s great concern about potential issues that could arise from this decision. Companies that are choosing not to implement a vaccination mandate are similarly worried about possible Work Health and Safety implications.
After publishing an article last week on the process of introducing a vaccination mandate, some of our readers had follow up questions. HRM put some of those to two legal experts, Amy Zhang, Executive Counsel and Team Leader at Harmers Workplace Lawyers, and Andrew Jewell, Principal of Jewell Hancock Employment Lawyers. Here are their responses.
Question 1: If a company mandates the vaccination and an employee has an adverse reaction, can the employer be held liable? Would this differ depending on whether the company is subject to a public health order?
Jewell: There is an argument that an employer could be liable for negligence if it directs an employee to get vaccinated and they have an adverse reaction. However, this would only be the case if there was no public health direction which applied. If an employer is simply following a government mandate, it is unlikely they could be held to have been negligent. In either instance, an employer who suffers an injury may have the ability to make a workers compensation claim.
Zhang: Even if no public health order applied and an employer mandated vaccination and serious adverse side effects arise, an employee may be entitled to make a workers compensation claim.
An employer may also face a disability discrimination claim if an employee had a prior disability that was exacerbated as a result of getting vaccinated. There is also the possibility of a negligence claim being made against the employer, although there may be significant issues with such a claim, given the government is strongly recommending vaccination and the mandating of vaccinations is consistent with government and health advice.
Employers can protect themselves from potential claims by encouraging rather than mandating vaccination, and consulting with employees as to any potential health issues that they may foresee arising from getting vaccinated.
[HRM is taking a deep dive into the topic of employer’s liability around adverse reactions to the vaccine in the coming weeks. Stay tuned!]
Question 2: Could workplaces introduce rapid antigen testing for employees instead of mandating the vaccine?
Jewell: In places like Victoria where a government mandate does not allow employers to let unvaccinated employees to work anywhere but from their home, there is no ability to put in place any alternative system such as rapid antigen testing. However, if that mandate was lifted, or in states where no such order is in place, employers can consider rapid antigen testing as long as they can establish a safe system.
Zhang: If there are no public health orders requiring vaccination, then workplaces can introduce a policy which states that rapid antigen testing can be used in place of mandating the vaccine, alongside a suite of other safety protocols to protect staff and minimise the spread of COVID-19.
Indeed, to satisfy work health and safety obligations, employers should introduce rapid antigen testing for all employees, including vaccinated employees, given vaccination does not fully prevent the spread of COVID-19. Employers cannot simply rely on vaccination to discharge their safety obligations.
Question 3: How can companies mandate the vaccine for their first two doses of COVID-19 vaccination, as well as the booster shot?
Zhang: An employer has a right to mandate vaccination, including a booster shot, provided it is lawful and reasonable to do so.
What is lawful and reasonable will depend on a range of factors and the circumstances of the case, including, but not limited to, the nature of the role and industry, the spread of COVID-19 in the community at the particular time, any legitimate reasons why an employee is not able to get vaccinated or get the booster shot, and whether there are alternatives to vaccination (such as rapid antigen testing).
In terms of office-based workers who are able to complete work at home, if it is lawful and reasonable for the employer to direct an employee to get vaccinated and return to the office, then an employee’s failure to comply with a lawful and reasonable direction can result in disciplinary action, including dismissal.
An employer can also include the requirement for the vaccination, including a booster shot, in employment contracts, although an employer must be mindful of not contravening discrimination legislation.
AHRI’s COVID-19 resources hub offers templates, guides and additional information to help HR professionals navigate vaccination mandates and other COVID-19 related topics.
Question 4: Is an employer legally obligated to accomodate a prospective employee who has an authorised medical exemption and therefore has not been vaccinated?
Zhang: If an employee has a valid medical exemption, then under the public health orders, they are able to work in the workplace. However, an employer will still need to consider any health and safety obligations associated with unvaccinated (medically exempt) employees who are working in the workplace, for example, any higher risk that they catch COVID-19 and any accommodations that should be implemented to eliminate or reduce that risk.
Employers also need to be mindful that they cannot discriminate against employees because they are unvaccinated due to a medical exemption. For example, they cannot refuse to hire such an employee on that basis, unless that employee could not perform the inherent requirements of the role.
If an employee can perform the role with reasonable adjustments (such as by working from home, or with slight changes to the way the duties are performed), then an employer is required to accommodate those reasonable adjustments.
The nature of the reasonable accommodations will depend on the specific role and workplace, but must not cause unjustifiable hardship to the business. Reasonable accommodations also need to be balanced against an employer’s health and safety duties.
This may mean that if an employee is unvaccinated due to a medical exemption and is usually in a customer facing role, they may, for a time (depending on the spread of COVID-19 in the community at the time), work in a low customer-facing role (i.e. moving into administrative duties).
Question 5: How should employers collect vaccination information from their employees while ensuring they are protecting their private information?
Zhang: The collection of vaccination information is governed by the Privacy Act 1988, and other legislation. Significant penalties and other consequences apply in respect to a failure to comply with the relevant obligations.
As a matter of best practice, employers should only seek and collect the minimum information necessary for them to satisfy their obligations around checking that staff are vaccinated or not vaccinated. This may involve simply sighting COVID-19 vaccination certificates rather than storing them.
Any records of such information should be kept in a secure file and access to such information should be limited. The information should be kept confidential and not used for any purpose outside of which it was collected. Employers should also, as a matter of best practice, develop and circulate a written policy that sets out clearly the protections in place around the information collected.
Jewell: The obligation is for employers to collect confirmation of vaccination or otherwise record employees as unvaccinated. This means that employees don’t actually need to provide anything, they will just be treated as unvaccinated if no proof of vaccination is provided.
Employers should create a registrar which collates vaccination certificates or records employees as being unvaccinated and limit the access of this registrar as much as possible to ensure the information is treated with the most privacy possible. If employees ask about this, employers should consider describing the protections in place to ensure information is protected because asking a question about the treatment of their private information is inherently reasonable.
Do you have any further questions? HRM is happy to consider answering more in a follow up article. Let us know in the comment section.
The information in this article is general in nature, and should not be taken as legal advice. Where necessary, please consult a legal expert for professional and tailored advice that addresses your company’s specific needs.