Calls about vaccine mandates spiked 297% in September and haven’t slowed down, according to one human resources company
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Australian employers are still questioning their rights and obligations to enforce staff COVID-19 vaccinations, human resources firm Employsure states, as new industry mandates ramp up across New South Wales and Victoria.
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The number of calls Employsure received from employers regarding the COVID-19 vaccine grew by 297 per cent over September, as NSW vowed to make vaccination mandatory for tens of thousands of public-facing workers ahead of ‘Reopening Day’.
Victoria followed suit in early this month, with the announcement that authorised workers will need at least one dose of the COVID-19 vaccine by 15 October before attending their work site.
“The call volumes have persisted and there definitely hasn’t been any drop coming into October,” Employsure business partner Emma Dawson told Business Insider Australia.
Months into the national vaccine rollout, mandate rules still present an “evolving territory” for Australian employers, Dawson said, with businesses fearing the risk of “penalties or employment claims.”
Workplaces not covered by government mandates or public health orders are free to enact their own in-house mandates, Fair Work says, so long as those businesses can prove the measures are “lawful and reasonable” under industrial relations law.
While some legal experts say businesses should have little problem proving their point in court, many businesses are still reluctant to risk drawn-out legal battles against their own employees.
“So that’s why we’re seeing so many calls, to ultimately help employers navigate that territory,” Dawson said.
Case law needed for businesses to make a stand
The bulk of the calls are coming from employers in the construction, retail, healthcare, and manufacturing industries, Dawson said.
The government mandates and public health orders facing those industries varies between jurisdictions, leading to a mixture of legal requirements nationwide.
And industries not directly addressed by the latest round of mandates must “navigate a sea of case law to find an answer,” Dawson said.
“Even then it’s still currently open to interpretation.”
“So it’s really important that there is a clearer position written into law so that businesses can confidently make decisions without fear of an employee making a claim.”
Employers seek answers on vaccine hold-outs
The questions faced by Employsure fall into five broad categories, Dawson said.
Businesses want to know if they can require an employee to get vaccinated; what rights an employee has under those circumstances; obligations for employers who don’t want to enforce staff vaccination; how to handle medical and religious exemptions; and which rules apply to reopening businesses after months-long shutdowns, particularly in NSW.
Of those questions, the first — which boils down to what an employer can do when workers are pushing back on vaccination, whether there is a mandate or not — is of chief concern.
It’s “a very common scenario that we’re coming across in our advice service,” Dawson said.
“It is very much situational, case by case, every business is different, every employee might be very different to manage.”
While circumstances vary, Dawson said employers should assess a few key possibilities before taking drastic action.
Businesses should first assess if a worker holds any valid medical or religious exemptions, and seek to accommodate those requirements while minimising any further health risks.
If an employee without one of those exemptions continues to avoid the jab, businesses should investigate whether they can be safely redeployed to another part of the business less likely to face the public or coworkers.
Employers may be able to negotiate work-from-home arrangements with some employees, Dawson said.
If all else fails, and an unvaccinated employee’s work conflicts with legal mandates, businesses may be free to look into “show cause meetings, capabilities meetings, and disciplinary processes, which can lead to outcomes of termination.”
Businesses forced to close as a result of their workforce not being vaccinated could consider looking into stand down provisions enshrined by the Fair Work Act, Dawson said, with employees put on unpaid leave.
Some unvaccinated workers may also be able to use annual or long-service leave as a buffer while they receive further health advice — a proposal already floated by retail giants like Bunnings.
But “leave is not forever, and if it is long term, termination is typically the likely outcome,” she added.
Communication with the workforce remains key
In all circumstances, businesses should keep an open line of communication with their employees regarding vaccination, Dawson said.
“They need to be consulting with their employees, and if necessary, any of their employees’ representatives about any measures or controls that have been implemented within the business, or the requirements to comply with any mandatory health orders.”
As businesses contend with mandates and employees yet to accept the jab, hesitancy rates are relatively low across the board, and overall vaccination rates continue to climb.
As of Thursday, 65.4% of Australians over the age of 16 have received at least one dose of the COVID-19 vaccine.
With one day to go before Victoria’s authorised worker vaccine mandate kicks in, 87.1% of the state has received its first dose.
Across the border in NSW, 91.4% of residents have rolled up their sleeve at least once.
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