The Prime Minister has publicly stated that his government will not introduce laws to mandate vaccinations. This means that it will be up to individual businesses to decide whether they will require staff to be vaccinated. In this regard, food manufacturer SPC has announced that it will ban workers from working on its sites unless they have had their first vaccine dose by 31 October 2021 and are fully vaccinated by the end the year (this has changed from the requirement that staff be fully vaccinated by 31 October 2021). By early October 2021, SPC confirmed that over 99 percent of their staff had either had their first or second dose or had made a booking to receive one of their doses. For those SPC employees who had indicated they do not wish to become vaccinated, SPC have said that they may terminate their employment unless they have a valid reason to not become vaccinated.
In my previous articles 'Eliminating COVID-19 Risk From Australian Workplaces' and 'Work Health and Safety During a Pandemic: The Issue of Vaccination for Businesses' I set out some of the legal considerations businesses need to have regard to in determining whether to require workers to be vaccinated for COVID-19. A businesses’ duty of care in this regard requires that it be alive, and adapt, to any change in the nature of the risk posed by COVID-19.
Following SPC’s announcement, the Fair Work Ombudsman has also developed a “four-tier system” to assist businesses in determining whether they can legally and reasonably require their workers to be vaccinated. This system categorises all types of employment into four tiers, with the first tier being the workers who are at the highest risk of contracting COVID-19 through their employment (for instance, people working in hotel quarantine), and the fourth tier being the workers who are at the lowest risk (for instance, people who are working from home). The Fair Work Ombudsman has indicated that it is likely to be reasonable for employers to require first and second tier workers to be vaccinated, but it is unlikely that it will be reasonable for employers to require fourth tier workers to be vaccinated. The third tier is more discretionary. The Fair Work Ombudsman has reiterated that businesses must have regard to, in particular, anti-discrimination laws and relevant awards when directing workers to become vaccinated.
Having regard to the continued spread of the Delta variant in New South Wales and Victoria, it is likely that businesses located in these states will need to prepare to operate (to the extent permitted by the governments) with the Delta variant spreading within the community.
In addition to this, the fact that the Delta variant has been demonstrated to be more transmissible and more likely to cause severe disease in younger persons means that any business that continues to operate (particularly in New South Wales and Victoria) needs to re-evaluate its policy regarding whether to direct workers to become vaccinated as a condition of ongoing employment.
Any direction to a worker to be vaccinated as a pre-condition to continuing employment will need to:
- Have regard to access to vaccines. Presumably, SPC has decided to require all staff to be fully vaccinated by November because it considers all of its workers will be afforded the opportunity to have had their second vaccination by 31 October 2021. Access to a vaccine may be subject to regional variability, and this is something that does need to be taken into account.
- Have regard to the fact that certain workers may, for medical reasons, be unable to receive any or all of the Pfizer, the Moderna, or the AstraZeneca vaccines . In this regard, it may be appropriate for an organisation to allow certain persons to be exempt from the pre-condition but allow those workers to be directed away from the workplace when they are at a heightened risk of contracting COVID-19.
- Consider whether it is appropriate to allow people to wait until they can make an appointment to receive their preferred vaccine. In this regard, given the heightened risk of contracting COVID-19 in NSW at present, it may be appropriate for an organisation to direct workers away from the workplace until they are vaccinated.
- Have regard to the type of work performed by the worker and the relative risk that their work poses in terms of them contracting COVID-19 as a result of their employment. In this regard, it may be appropriate for a business to direct workers who have significant contact with members of the public who are particularly vulnerable to the effects of COVID-19 to become vaccinated, but it may not be appropriate for a business to direct a worker who is working from home to become vaccinated.
Vaccination being a pre-condition for continued employment is not an insurmountable barrier for employers, but it is heavily reliant on the context in which the organisation operates. Whereas, until recently, there had been little evidence of widespread community transmission, the situations in New South Wales and Victoria do require businesses to consider if and how they can operate with the Delta variant spreading in the community.
While some states and communities have effectively quashed outbreaks of the Delta variant, it is also reasonable to presume that any community is likely to experience outbreaks of COVID-19 from time to time, and businesses should manage their workforces accordingly. A business ought to be mindful of not just responding to outbreaks as they occur, but prepare for likely outbreaks in the future; particularly as various levels of governments and numerous experts have made it clear that we are not going to be able to return to “pre-pandemic functioning” anytime soon.
