Ask an Employment Lawyer is a FREE series by Recruitment Marketing Magazine with Jonathan Mamaril, Director for NB Lawyers – Lawyers for Employers. If you’re a talent leader or HR professional subscribed to RMM, ask any talent engagement, employment law or workplace-related question and have it answered in this series. In this instalment, Jonathan shares valuable information about COVID-19 vaccinations.
A number of employers now must consider the COVID-19 vaccination. As an employer, can you require your employees to get vaccinated? The answer is yes. But there are some caveats, mainly around:
- Inherent requirements of the position
- Workplace health and safety obligations
- Reasonable and lawful directions
- Dealing with objections
- Dealing with objections around the inherent requirements of the position and medical grounds.
So, what now?
Here are 5 questions for all employers to consider in the coming months.
1. Have you drafted a COVID-19 vaccine policy and procedure?
This is a crucial question. If your organisation will likely be working in industries that will require COVID-19 vaccinations or it will likely form an inherent requirement of the position, then a policy and procedure should be drafted. On this basis a few things need to be considered:
- Who will draft the policy?
- Is the policy drafted by an Employment Lawyer?
- Does it link with employment contracts?
- Are there other industrial instruments to consider; for example, modern award, Enterprise Agreement or even other policies and procedures?
- Does the policy (as it is drafted) provide for contractual or other workplace rights for the employee? If so, how can you mitigate this risk and liability?
2. Have your Workplace Health and Safety (WHS) obligations been assessed properly?
Have your WHS obligations been assessed, and if so what are they? What will be the reasonable steps required to be taken?
For those in health and frontline worker support, there will be much higher obligations than companies with several office workers who work from home or work remotely.
Obligations could include:
- Undertaking a WHS assessment
- COVID-19 vaccination training
- Obtaining legal advice on the WHS obligations for the company
- Identifying all risks and reviewing and assessing the risks.
3. Has your workforce been consulted?
If you’ve undertaken a consultation, what was said and what documents were provided?
Have you complied with any industrial instrument obligation such as a Modern Award or Enterprise Agreement?
Do employment contracts or other policies provide obligations for how and when the consultation is to take place?
4. What objections are there by employees to taking the vaccine?
By far the biggest question we receive is around what employees will say about being directed to take the COVID-19 vaccination.
Several objections come to mind:
- Religious
- Ethnic
- Social
- Political
- Medical
- “I simply don’t want to”
- “it is untested”.
All these objections, and any others, these questions must be addressed through considering:
- Workplace health and safety obligations
- Contractual obligations you may have with third parties
- The inherent requirements of the position
- Will the direction to take the vaccine be deemed reasonable and lawful.
5. If you’re considering disciplinary action, what needs to be considered?
This is a very difficult issue to traverse. If you’re seriously considering disciplinary action based on a refusal to take the vaccine, consider the following issues:
- reasonable adjustments
- WHS obligations
- discrimination legislation
- unfair dismissal claims
- general protections claims
- bullying claims
- reasonable management action
- natural justice and procedural fairness
- any other workplace rights that may have been utilised by the employee
- compliance of any industrial instruments regarding procedures for taking disciplinary action
Do you have a question for Jonathan? Send it to editor@www.rmm.onenazmul.dev. Jonathan and his team of employment lawyers at NB Lawyers will answer as many as they can and share these answers in Recruitment Marketing Magazine*.
*This series may be limited. Legal advice is general in nature. For tailored legal advice specific to your organisation, industry and location, speak to your organisation’s legal advisor.
Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem.