All employers and employees are well aware of the way in which our workplaces have changed in the last two years. In March 2020 we published an article dealing with workers compensation issues arising from COVID-19. It focused on the need for employers to ensure safe work practices and a safe workplace, particularly with working from home becoming more common.
With the availability of COVID-19 vaccinations, new issues arise for employers and employees regarding unvaccinated employees returning to work in the normal office environment. This matter was dealt with by our employment team in an article in February this year, ‘Can I Make Covid-19 Vaccination Mandatory for All Employees?’. At the time, we indicated that there was no clear legal position in relation to mandatory vaccinations, and the topic remains controversial. As explained in that article, the question of mandatory vaccinations will often be a balancing act arising from the nature of work being carried out, the type of health directions or laws in place, and the individual circumstances of the employee in question.
In more recent developments, it is noted that earlier this year the Fair Work Commission rejected an appeal from an aged care staff member who claimed she was unfairly dismissed because she refused to have a flu vaccination. At the time, there was a public health order requiring those working in aged facilities to have such injections. Ultimately, a majority of the Fair Work Commission full bench found that the decision to dismiss the worker who refused to have the vaccination was reasonable and not an unfair dismissal. It is arguable that a similar result may occur, particularly in some workplaces, if an employee refused to have a COVID-19 vaccination. It must also be remembered, however, that some employees may be unable to have vaccinations because of individual health circumstances. It is likely that when considering these matters in the future, a court or the Fair Work Commission will need to balance individual rights of employees with the broader question of public health and the duty of care owned by employers.
As explained in earlier articles, an employer has a duty of care to take all reasonable steps to avoid an unnecessary risk of injury to their employees. In line with our earlier article about work safety, the content of that duty of care will be informed by what can reasonably be done to protect employees.
In the case of working from home, the employer must ensure an appropriate and safe work environment and take steps to ensure that proper equipment and a suitable workplace are available. There are also potential issues arising from the need to care for children in this workplace or in the very unfortunate circumstances of domestic violence when employees are working from home.
Similarly, it is arguable that an employer should protect their employees returning to the workplace to avoid any unnecessary potential exposure to COVID-19. In circumstances where the COVID-19 vaccination is available to all employees (which seems likely in Canberra by the end of the year), an employer who allows an unvaccinated employee into the workplace could be unreasonably exposing other employees to potential serious illness. It is our view that every employer must address this issue, ensure it has up-to-date, thorough and confidential vaccination records, and then consider what policy it will have in terms of any employee who has failed to be vaccinated or refuses to do so. It is arguable that such employees should not be allowed to work in the office environment, and, if they are unable to perform their duties from home, it may not be feasible for them to be retained as employees.
Hand in hand with that is the obvious need to have ongoing clear policies within the workplace to deal with the ever-present risk of COVID-19. These policies, which were outlined in our earlier article, include appropriate social distancing, regular and enforced hygiene arrangements, regular cleaning and possibly mandatory mask wearing.
The employers’ duty may also extend to those dealing with the business in question, such as clients or customers who may be visiting the office or premises where employees are located. The same tests of what reasonable steps have been taken will be relevant in those circumstances.
It is our view that all employers must carefully consider the risk factors relating to the workplace. They should consult with employees about these issues and ensure they have a clear, written policy dealing with workplace safety in a COVID-19 environment. This policy must be made available and well known to all staff.
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