Employment in a post lockdown Australia

The easy answer is – a lot remains unknown.  But let’s face it, this isn’t particularly useful.  In this article we address the commonly asked questions around vaccinations in the workplace based on the current information available.

Do I need to make sure my employees are vaccinated to open my business?

The answer to this question is complex as it varies for different industries and occupations, across States and Territories.  Many States and Territories have issued Health Directives which mandate vaccination for employees in specific industries. 

Where you operate in an industry or occupation covered by a Health Directive you must comply with that Health Directive, and this may mean that you are not able to have unvaccinated employees engaged in your industry or occupation.  Due to the complexity of this issue, we encourage clients to call us directly for specific information on how these Health Directives effect your industry or employees.

How do I know if my employees are vaccinated?

It is permissible to ask employees if they have been vaccinated and to ask for proof of vaccination. However, you do need to be aware that such information is sensitive information and therefore any records kept of such information must be kept with the highest level of security and used only for the purpose it was collected. 

Employees may be willing to consent to your information being used for a related purpose such as notifying your clients or customers that your workforce is vaccinated. However, employers should obtain such consent on an individual basis and be very transparent about what such consent will mean in terms of the sensitive information. For example, the Team at Mazars HR and IR Consulting in Brisbane all consented individually to sharing our vaccination status with our clients. We thought this was important given we engage with the workforces of our clients.  However, employers should not assume that all employees will provide such consent.

Where an employee asserts a genuine medical exemption, you may request a copy of the relevant documentation.  Some clients have been provided with what appear to be questionable medical exemptions.  In some instances, these purported exemptions have not in fact been valid. Given the sensitivity of this issue we encourage clients who find themselves in this position to contact us for advice prior to challenging the employee’s medical certification.

What can I do if my employees do not want to return to the workplace?

This is a common concern. Many employees are either fearful of returning to a workplace where they may be exposed to Covid-19, or in our experience more commonly, they have become accustomed to working from home and are reluctant to give it up.  Where work is undertaken is a decision for the employer and not the employee. Therefore, reluctant employees (provided it is safe for them to do so), can be directed to return to the workplace. 

We recommend that employers work collaboratively with employees who are reluctant to return to the workplace prior to issuing them with a direction to return. In our experience there may be instances where a mutually beneficial outcome can be reached which meets the genuine needs of both the employer and employee. However, where a compromise is not achievable, or where an employer does not wish to continue a work from home model within their workplace, they may direct employees to return to the workplace and employees must comply.

Employers should however be aware that some employees may be able to make an application for flexible work arrangements under a Modern Award or the Fair Work Act, 2009, where such an application is made, an employer must genuinely consider such applications.

In my industry, I am only allowed to service vaccinated customers – how do I protect my employees?

In many States and Territories there is currently (or proposed) obligations placed on employers by Governments to only allow vaccinated employees and vaccinated customers to access their workplaces. Some employers have also made this decision themselves, to provide a higher level of protection to their employees, in the absence of a specific Health Directive. Although the rational for such Health Directives or employer decisions is clear, we are aware that there are employees and employers experiencing distress as they anticipate the prospect of conflict which may arise if they refuse service or access to a worksite, to someone who has elected not to be vaccinated.

This creates a risk as employers remain responsible for providing a safe workplace in such circumstances. There are likely steps that employers can take to minimise the risk. However, all employers in such situations should consider offering their employees specialist training in conflict resolution to improve their capacity to effectively manage such situations and de-escalate conflict should it arise.  Such skills will remain invaluable to your employees in the future as unfortunately we are all exposed to difficult customers or clients, from time to time. 

Our organisational psychologists and experienced consultants are able to deliver this training remotely via teams or zoom, or in person where borders permit travel.

Can I mandate vaccination for my workforce?

The legal framework on this topic for those employers who are not covered by a Health Directive is still developing, however it is fair to say that the published decisions to date, have supported an employer’s ability to do so as a WH&S strategy to mitigate the risks of Covid-19 in a workplace.  There are however many challenges to such decisions, and to the Health Directives themselves, pending hearing or decision in a number of jurisdictions both in the Industrial Tribunals and in the civil courts.

As a WH&S strategy employers need to be cognisant that they must make a genuine assessment of the workplace risks and whether mandatory vaccination is an appropriate mitigation strategy for their workforce. 

Employers who are covered by a Modern Award or Enterprise Bargaining Agreement are highly likely to have a genuine consultation obligation with their workforce prior to introducing a directive to mandate vaccination.  Best practice would require that any employer who is contemplating such a mandate would consult with their workforce generally and work collaboratively to resolve any barriers with the workforce of individuals.  Employers should ensure that any such policy provided an exemption for genuine medical exemption and a process for determining how such employees will be supported.

The greatest risk for employers, in our view, is not in making the decision to direct mandatory vaccination, but in the process used to implement that direction.  Employers who fail to follow best practice in actively engaging with their workforce and bringing them along on the journey of mandatory vaccination are more likely to experience disputation.

If you are considering mandating vaccination for employees, we highly recommend obtaining professional advice prior to proceeding.  We can assist employers both in their decision making but also in developing and implementing a process to increase engagement of employees with the process and therefore decrease the risks of disputation.

Which businesses have already announced mandatory vaccination?

A number of large employers have publicly announced their introduction of mandatory vaccination or their intention to do so in the immediate future.  The most well known include, Woolworths, Qantas, Coles, Telstra, SPC, P&O, Crown, Medibank, BHP, Virgin, PWC, Deloitte, Healthscope and Alliance Airlines.  Many State and Territory governments have also mandated vaccination for public sector employees particularly in the health and emergency services areas. 

We are also aware of much smaller businesses who have successfully worked with their workforces to achieve full vaccination, sometimes by collaboration and sometimes by a mandatory direction. Many employers unsurprisingly do not intend to go public, for fear of backlash and they are, of course, not required to do so.  

To say that employers are facing unique challenges is an understatement. Although the challenges are unique, the HR and IR practices necessary to effectively manage them are not.

There are opportunities as well as challenges for employers who take a proactive approach to people management as we move to a post Covid-19 lock down environment.  Returning to pre-Covid-19 employment processes and policies may not be ideal and employers should take this opportunity to critically consider how this re-opening could deliver benefits for them, their employees and their business.

Our consultants are experienced in working with employers facing these challenges and capitalising on these opportunities and are here to assist.  Please contact our HR and IR Consulting division via the form below or on:

Author: Cheryl-Anne Laird

Published:  26 October 2021

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