Assessing and managing health and safety risks is vital when dealing with COVID-19 in the workplace, an Ai Group webinar heard this week.

Employers needed to consider the safety of all staff when faced with any COVID challenge, Michael Mead, Head of Workplace Relations Consulting, Ai Group, said.

“The environment in which businesses are making decisions in and around COVID-19 and their operational measures continues to move . . . quite quickly,” Mr Mead told those attending the Navigating Recovery Roadmaps: mandating vaccination & working with COVID-19 webinar.

Mr Mead and fellow guest panelist Katie Hossain, Workplace Relations Adviser, Ai Group, were inundated with questions regarding vaccination, masks and discrimination.

Here are some of the questions they answered.

Q: If someone refuses to be vaccinated, do we have to keep their job open?

A: Whilst there may be the ability to consider terminating an employee’s employment if they can’t work because they refuse to be vaccinated, you still need to consider the unfair dismissal risk of the termination if they are covered by the unfair dismissal system. To that end, considering the nature of their role is important. Do they have a critical role, which means having them unavailable for now and for an extended period potentially . . . creates an operational issue that allows you to move forward and consider a termination of their employment?

Another key issue is to consider if they have any leave available. Have they suggested or are they willing to take any form of approved pay leave or even unpaid leave to try to get them through until such time as when public health orders (PHO) are lifted?

Unfair dismissal has a number of criteria to it. Valid reason is one of the criteria, but the Fair Work Commission (FWC) looks at things like procedural fairness and whether a decision to terminate is harsh, unjust or unreasonable. If an employee had an extended period of leave available and the employer flatly refused to even consider whether they could take leave to try and get them through this period, that’s an issue that might cause the raising of an eyebrow in front of the FWC.

It’s important to think about all those characteristics as you decide what you are going to do with the employee. You’re not required to hold their position open until the world changes or they decide they want to be vaccinated but taking it on a case-by-case basis, thinking about those factors: the nature of their role, the nature of the operational requirements, do they have any leave available, is it possible for them to go on unpaid leave and are they willing to – those are all relevant considerations the Commission will look at if exploring unfair dismissal jurisdiction.

Q: How do we manage employees when their roles are critical to the business and they’re unwilling to get vaccinated? Are we able to hire in their absence?

A: You may have the option to backfill that role. It’s about assessing the operational requirements you have, the nature of that position and what are the operational needs to create that valid reason for termination. It’s the idea that there are inherent requirements that that business has that need to be fulfilled that now can’t be fulfilled because an individual employee may be unwilling to be vaccinated.

We would caution against assuming it’s just a straight line from an employee refusing to be vaccinated so therefore we can terminate them without considering those other factors.

Q: What do employers need to consider when mandating vaccination?

A: If you are making it a condition of employment — so you would essentially be taking disciplinary action against the individual up to and including termination — it’s very important to talk to the employee to discuss the employee's reason for not wanting to get vaccinated. The employee may have a medical condition that means the vaccination is not recommended for them. Due process and procedural fairness are also crucial. Employees have various protections against being dismissed or treated adversely in their employment. Employers should ensure they follow a fair process and have a valid reason.

It’s also critical to have undertaken a risk assessment of your workplace so that you know on what basis mandating vaccination is to be regarded as one of the reasonably practicable control measures that you are seeking to put in place to manage the COVID transmission and infection risk.

If you were seeking to justify your right as an employer to issue reasonable and lawful directions that an employee must comply with, like mandating vaccination, a clear assessment of the risks that you are trying to control and how vaccinations sit within your risk matrix and other control measures is essential.

Q: Can vaccination status be used as a screening tool in the hiring process?

A: Commonwealth and State anti-discrimination acts protect current and prospective employees. This means there are discrimination risks with enforcing a strict rule or condition that mandates vaccination for all staff or prospective staff if the reason that a prospective employee can’t be vaccinated is because of a protected attribute. Doing so may engage the indirect discrimination provisions in the act.

In broad terms, indirect discrimination occurs when a person is required to comply with a general requirement such as a mandatory COVID vaccination and they are unable to do so . . . and it has the effect of disadvantaging them. The disadvantage would be to lose their position or not be hired in the first instance.

“While discrimination is relevant, it’s not likely to arise in the vast number of circumstances,” Mr Mead added.

“That discrimination issue only enlivens for a small cross-section of the population: those that have a particular medical contraindication that potentially triggers a consideration about disability discrimination. The same applies with religious beliefs.”

Q: What do we do if our vaccinated staff have safety concerns about working alongside those who are unvaccinated? 

A: It’s a conversation about your safety system. It’s not a conversation purely about vaccination and non-vaccination. If vaccination is part of your safety system, then that’s fine.

Regarding your safety systems, ask yourself:

  • What are the risk assessments I have done?
  • What are the control measures I have put in place?
  • How have I reassured concerned employees that we have a safe system of work, notwithstanding that there might be a few employees that either refuse to be vaccinated or may not be able to be vaccinated for some legitimate medical reason.

Q: Do we have an obligation to keep unvaccinated employees safe? Can we mandate masks for such employees?

A: Employers have an obligation to manage the health and safety of employees. Deciding that employees should wear a face mask if they are not vaccinated to try and minimise the risk to them of contracting COVID-19 or transmitting it is a legitimate step that might be taken by an employer to manage that risk. There shouldn't be concerns about questions of discrimination around that issue.

Q: What if they say they can’t wear a mask?

A: A request to socially distance or wear a face shield are alternatives for employees who say they can’t wear a face mask.

“It’s really important as you start to think about your employee relations and employment law obligations to fold them in hand in glove with your safety capability,” Mr Mead said.

Q: What about Rapid Antigen Testing (RAT)?

A: Some employers are considering RAT either as a requirement to access the site at large or a requirement to access the site for unvaccinated employees.

Q: Anything else I should consider?

Enhancing workplace surveillance. Not just through the scanning of QR codes – and in some cases QR codes that may be differentiated based on geographical location within a site or a building but also other measures like lanyards or other means of tracking employees while in the workplace so you can understand their movements.

Some businesses are also looking to enhance workplace surveillance in the more traditional sense, in terms of camera surveillance, so they can have a better sense of the way employees may come into contact with each other in the workplace.

Be aware that there is a range of legislation that applies to surveillance.

Other issues to consider include:

  • Having well-ventilated workplaces with appropriate filtration systems on those filters
  • Maintaining social distancing
  • Ongoing working from home arrangements
  • Improved cleaning regimes.

“It comes back to the risk assessment you have undertaken,” Mr Mead said.

“Is RAT an appropriate step to take for those that are unvaccinated in the workplace? It may well be, depending on the assessment of risk that has been determined.

“As always, you need to make those determinations and then appropriately arrive at conclusions to manage that health and safety risk.”

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Wendy Larter

Wendy Larter is the Senior Content Writer at Ai Group. She is a former journalist with more than 20 years’ experience as a reporter, features writer, contributor and sub-editor for newspapers and magazines including The Courier-Mail in Brisbane and Metro, News of the World, The Times and Elle in the UK.