If you’re planning to issue a vaccination mandate, learn from these companies that have already gone through the process.
Editor’s note: HRM acknowledges that not all organisations will decide to mandate the COVID-19 vaccine. But for those who intend to take that step, we hope this article offers some useful advice and guidance.
With many employees returning to the workplace, it’s likely that more companies will soon follow suit.
“Employers in this jurisdiction should ascertain the applicability of the public health orders to them as there are consequences for failure to comply,” says Kathryn Dent, Employment and Industrial Law Partner at HWL Ebsworth Lawyers and Convener of AHRI’s NSW ER/IR Committee.
“It also makes it less challenging to mandate vaccinations as employers have no discretion to depart from [the public health orders], unless an exceptional circumstance exists within the confines of that order.”
To respond to the myriad questions arising about workplace vaccination mandates, AHRI recently hosted a virtual webinar to unpack the topic.
Dent explained the legal parameters around introducing a vaccination mandate, and HR leaders discussed how their companies successfully rolled out a vaccination mandate, while offering advice for those thinking of doing the same.
Don’t have time to read the whole article? Skip to the part that interests you most:
- The legal considerations you should keep in mind
- Case study #1: Issuing a mandate
- Case study #2: When employees refuse the vaccine
- Case study #2 continued: Managing medical exemptions
- Ask your COVID-19 vaccination questions for an upcoming article.
Legal questions before mandating the vaccine
When considering whether to introduce a vaccination mandate for existing employees, start by establishing clear reasons for doing so in your particular industry.
Dent outlined three questions employers should ask themselves:
1. Is there a law or public health order (PHO) that applies to your workplace, or to the type of work that’s being performed by some employees?
Companies that fall within tier one (i.e. employees such as border control or hotel quarantine staff who are required to interact with people who are considered high-risk) or tier two (i.e. employees who have close contact with vulnerable people, such as those working in the health or aged care sectors) according to the Fair Work Ombudsman’s mandatory vaccination guidelines, are more likely to have a PHO apply to them – although this isn’t a given.
It’s possible that workplaces that sit under tier three (i.e. employees interact with the public, consumers or other employees, such as retailers) and four (employees who have limited face-to-face encounters) may also have a PHO apply to them.
As detailed in the introduction of this article, PHOs are now being rolled out more extensively.
2. Next, Dent advises those who aren’t affected by a PHO to ask: ‘Is there something in a contract or a policy that allows you to mandate vaccination?’
Most often, the answer is no, she said.
“I suspect, as a result of the pandemic, a lot of employers are going to be amending employment documents such as job application forms, collection notices to enable COVID-19 vaccination history to be obtained and employment contracts, and drafting up policies.”
3. Until that amendment comes into force, employers need to assess if it could be considered a lawful and reasonable direction to mandate vaccination.
“Discrimination considerations aside, there’s nothing inherently unlawful about it. Given [employer’s] work, health and safety obligations, it is lawful,” she said, so that just leaves an employer having to ensure that the direction to be vaccinated is reasonable. The FWO guidelines may help to establish whether this is the case.
When considering reasonableness, Dent’s advice is to assess factors including the risk of contracting and transmitting COVID-19 in the workplace, and the level of transmission in the community.
HRM recently reported on the case of an employer’s insurance provider being ordered to pay more than $830,000 to the widow of an employee who contracted and died from COVID-19 on a work trip, with millions more in medical bills currently being assessed.
Dent says the availability of the vaccine in particular locations comes into play here.
“[You could risk] being seen as unreasonable if you put a date on a vaccination requirement and then most of your workforce isn’t able to comply because of where your workplace is located”.
Employers must also consider whether employees have a legitimate reason to push back against the vaccination mandate (more on that under section three of this article).
“Factors relevant to the reasonableness of directions for tiers three and four will come down to the amount of contact that employees are having with other employees, third parties (such as suppliers and customers) and members of the public.
“If employees are working from home in a tier four environment where they have little-to-no contact with other people, then it may be less reasonable to mandate them.”
Once the decision to roll out a vaccination mandate has been made, it’s time to consider how this can best be rolled out across your workforce. HRM looks into how two companies have done this.
Case study 1: Issuing a vaccination mandate
SPC, a fruit and vegetable manufacturing company, began considering a vaccination mandate in early August when it became concerned that the existing COVID-19 safe plan wouldn’t be sufficient to curb the spread of the Delta variant.
The seasonal nature of SPC’s work – and its classification as an essential service – also informed the company’s decision to mandate.
“Our Emu Plains site is a manufacturer of prepared meals [which are supplied] for clients accessing the NDIS,” said Robert Tanti, General Manager People and Culture at SPC. “Lockdowns at this site risked supply to the vulnerable in our community.
“Additionally, at our Shepparton facility, our workforce triples in size to receive and process locally grown stone fruits as they come into harvest.”
A shutdown would significantly impact the company’s ability to receive and store harvested fruits, risking effective business continuity, and spoiling harvested fruits.
After receiving advice from legal and medical experts, SPC formed the view that “the only reasonably practicable measure [it] could take to keep [its] staff and community safe was to mandate [vaccinations]”.
They carefully followed a series of steps to uphold this directive.
First and foremost, the executive team developed a document explaining the reasoning for mandating the vaccine, said Tanti.
“We were really clear about the guiding principles of our implementation program, offering high care and a focus on wellbeing, providing access to feedback forums, empowering employees with information and education, and ensuring business continuity.”
After receiving full support from their board, SPC consulted with its workforce by implementing the following measures:
- Face-to-face or virtual town hall meetings: “Once emails and notifications were sent to staff and the union, we engaged employees more personally by taking questions, listening to concerns and addressing them quickly.”
- Regular updates on vaccination information through weekly meetings, as well as education sessions with experts such as Associate Professor Steven Tong, Co-Lead of Clinical Research at the Doherty Institute.
- Weekly sessions with health and safety representatives on site, and with the Australian Manufacturing Workers’ Union to update them on SPC’s process.
- Establishing a central port of call through one COVID-19 email address and phone line.
“We took queries and could respond in real-time as needed. They fielded questions about issues including infringement of personal rights, the science behind the vaccination, difficulties in accessing the vaccination or in using the website to book their vaccination,” said Tanti.
“The insight we gained from this level of consultation enabled us to pivot our approach and target our support to where it was needed most.”
- Team leaders were armed with weekly toolbox talk sheets.
“When we couldn’t hold town hall meetings on site anymore, the team leaders would hold toolbox talks with their own team, and feed back information to employees as it was developing, and would receive additional questions.
SPC is now nearing the end of its mandatory vaccination program, and is well on the way to 100 per cent double dosed by mid-November.
“This policy applies to visitors, contractors, agencies and consultants alike. We are actively recording or citing vaccination records, in accordance with our privacy obligations.”
The COVID-19 vaccination webinar was promoted on the AHRI Lounge, exclusive to AHRI members. Sign up to the lounge today so you don’t miss out on opportunities like this in future. Exclusive to AHRI members.
Case study two: When employees refuse the vaccination mandate
In keeping with the PHO, Trinity Grammar School in NSW is introducing a vaccination mandate for all employees from 8 November, but employees have not been able to return on site unless they’re fully vaccinated since 18 October.
Belinda Reid, Head of Human Resources, said the school offered three options: employees would need to get vaccinated, put forward a reasonable exemption, or have their employment terminated.
For the few employees who refused to be vaccinated without a valid exemption, Reid’s first response was to convey that the mandate was coming from a professional need to protect students and staff, rather than a personal objection to their vaccination refusal.
“I have recognised that those who are not willing to be vaccinated are approaching this from a deeply rooted part of their identity, or from fear. We‘ve taken a very respectful, non-judgmental approach, and kept it highly confidential.
“We’ve been having one-on-one conversations to try and understand where they’re coming from and whether we can help them to come around [to being vaccinated].”
The school encouraged vaccine-hesitant employees to have a conversation with a medical professional to better understand the risks and benefits of the vaccination.
If the employee remained firm in their decision to remain unvaccinated, the school respected that choice.
“It is not our place to force or guilt people into changing their minds,” said Reid. “We just provided a supportive and respectful platform for them to discuss their concerns with us. We managed to change the views of a couple of employees along the way and are disappointed to lose a couple who remained firm in their decision not to be vaccinated.”
“I have recognised that those who are not willing to be vaccinated are approaching this from a deeply rooted part of their identity, or from fear. We‘ve taken a very respectful, non-judgmental approach, and kept it highly confidential.” – Belinda Reid, Trinity Grammar School.
Holding the line, however, has come with its fair share of “emotional challenges”, said Reid.
“I’ve had to effectively tell one staff member that their career is over.”
“They’re not resisting vaccination on any of the modes of exemption that fit under the medical category. So the conversation we’re having now is ‘where to next’ for them because it is effectively ending their [teaching] career. The public health order is mandated across the education sector, so I can’t suggest alternative employment [within education] for teaching staff.”
In these cases, the school has taken a “supportive but more formal process of show cause and notice of termination”, said Reid. This includes assisting them to transition into a new role or a potential new career.
“As we normally do, we would be happy to support them with appropriate referees and access to assistance with job applications and resumes,” said Reid.
Access to professional development and training to help them transition into the next stage of their career would “certainly not be off the table, but would be considered on an individual basis”.
Overall, most employees have been “willing to comply”.
“I’ve actually been quite surprised by the limited resistance we’ve had. At the moment, we’re now sitting at about 98 per cent already vaccinated.”
Case study two continued: When employees have a medical exemption
Determining how best to support employees who remain unvaccinated due to a medical reason has been “the trickiest [path] to navigate,” said Reid.
“The Medical Contraindication Exemption ensures compliance with the public health order, but under WHS legislation, the employer remains responsible for ensuring the health and wellbeing of its workers.”
Trinity has developed a risk management matrix, detailing the risk of exposure to COVID-19, strategies to mitigate the risk, and the feasibility of implementing those strategies.
“The plan is to walk through it with the individual to discuss what risk looks like in their role and what can be done to address it. It will come down to the level of face-to-face contact with students and the potential transmission,” said Reid.
“Of course, it is important to consult, as there may be aspects or options we have not yet considered that just might make it feasible for them to continue working in this setting and role.”
They then assessed the inherent requirements of an employee’s role, and ascertained whether the school can successfully mitigate the risk to an acceptable level.
For employees who have a medical exemption, Trinity is creating individual work plans with the employee.
“In the case of adjusting work practices, we are in the process of consulting with the individuals and key stakeholders to assess whether those adjustments are practicable.”
“We’re looking at how it will work for them to ensure that they’re included, and we’re inclusive and non-discriminatory, but at the same time protecting our wider community,” she said.
HRM will be putting some of our readers most pressing questions about the vaccination mandate to a lawyer later this week, and we’ll be publishing some of the responses soon after. We will be expanding upon some of the points covered in this article, and asking about the liability of adverse reactions to the vaccine, details around how to approach booster shots and any privacy obligations when collecting employees’ medical information. Want your question answered? Let us know in the comments section.