Is the COVID-19 vaccine an employer’s golden ticket to workplace freedom?

While flexibility in the workplace had begun to gain traction prior to the COVID-19 pandemic, the virus indiscriminately forced many employers to direct workers to perform their employment obligations from, quite literally, anywhere in the world (including their dining room table). The widely adopted acronym “WFH” has even made it into the Oxford English Dictionary.

Now, COVID-19 vaccines have allowed the world to slowly open up after at least a year and a half of lockdown hibernation.

Employers navigating the post-COVID era are considering their approach to hybrid work environments. At the heart of the issue is an employer’s legal obligation to ensure the health and safety of its employees.
Workplaces are not sanctuaries from infection. In the “traditional” workplace, employees will typically be in contact, either directly or indirectly, with numerous individuals with whom they would not have otherwise interacted while WFH. Accordingly, COVID-19 is a risk to health and safety in the workplace, which employers are required to manage.

Work/Occupational Health & Safety obligations

The NSW Personal Injury Commission recently published a decision in which an employer was held to be liable for an employee’s COVID-19-related death. The decision demonstrates that employers may be liable where an employee contracts COVID-19 at work. It is also worth noting that in NSW alone, it is predicted that COVID-19 claims under the workers compensation regime will balloon to $638 million in the next 12 months.

Under work/occupational health and safety legislation across the various states and territories, employers must ensure the health and safety of their workers, so far as is reasonably practicable. This includes taking steps to eliminate or minimise the risks associated with the transmission of COVID-19 in the workplace.

Should those steps include implementing a mandatory vaccine policy in your workplace? Well, that depends on your objective.

Vaccination mandate – the lesser of two “evils”?

Vaccine mandates have been a hot topic for the better part of a year in Australia. State governments have already begun directing workers in certain industries to be vaccinated to continue working where it is not practical to work from home. Many people have cited limitations on their choices and freedoms when expressing their disapproval of the decision to impose such directions. In that respect, the NSW Supreme Court very recently dismissed proceedings in which individuals sought that the Court declare the NSW public health orders mandating vaccines for certain workers unconstitutional and unreasonable. The Court rejected all of the asserted grounds challenging the validity of the public health orders.

In an environment where there has been a significant amount of protest, it is perfectly natural for employers to hesitate when navigating the complex issue of mandating COVID-19 vaccines. Questions for employers to consider before mandating vaccines include: Are you considering the issue from a W/OHS perspective? Why would you mandate COVID-19 vaccinations for your employees? Do you need it at all? Do you need it for some or all employees?

The empirical evidence in support of the efficacy of vaccinations is clear. In NSW, for example, during the period 25 September 2021 to 2 October 2021, there were 975 COVID-19 patients in hospital, 64.5% of whom were unvaccinated. In that same period, there were 194 COVID-19 patients in intensive care units and 71.6% of those patients were unvaccinated.

Based on these statistics COVID-19 vaccines may be considered one of the highest-order risk control measures, and one that significantly reduces the risk of hospitalisation. It is true that the vaccine is not a cure, but it is a means by which we can live with this virus.

If you are not yet decided on whether the COVID-19 vaccine will be your knight in cylindrical plastic armour with a sterile needle on the end, you will need to thoroughly consider other control measures that can be put in place to ensure the health and safety of your workers. We recommend, at a minimum, the following measures.

  • Implement a COVID-19 safety plan – This is mandatory for many types of businesses, and employers should ensure that they check their relevant state government website for updated information and requirements. Employees should be familiar with the plan and it should be regularly circulated among the workforce and to visitors to the workplace.
  • Consider a vaccination policy for workers returning to the workplace – While vaccination freedoms under various health orders will not last forever, we recommend that employers apply a reasonable and appropriate vaccination policy, which captures the possible ongoing need to maintain full vaccination status and takes into account waning vaccine effectiveness. For any employees working on the frontline or in public-facing roles, a mandatory COVID-19 vaccine policy may be considered the highest control measure to protect employees from the transmission of COVID-19.
  • Physical controls – The continued implementation of physical distancing through varied office fit-outs, modified start and finish times, avoiding overcrowding in shared spaces, mask wearing in appropriate circumstances and providing appropriate hygiene equipment and instructions are still simple and effective transmission control measures. Health advice suggests that high vaccination rates do not justify abandonment of these measures at this time.
  • Ventilation systems – There is growing evidence of the importance and effectiveness of ventilation and air purification in reducing the spread of COVID-19. We recommend undertaking a review and risk assessment of the ventilation in your workplace. Where appropriate, employers should liaise with their landlord and building managers to increase airflow in high-traffic areas.
  • Ongoing monitoring and adapting – One of the biggest lessons over the past 18 months of the pandemic has been the need to constantly adapt and change to the evolving health environment. High vaccination status doesn’t allow for complacency, and businesses should ensure they have appropriate systems in place to take action and adapt systems if and when it becomes necessary.

Ultimately, as an employer, it is important to either eliminate the risk of COVID-19 in the workplace or, if that is unachievable, minimise exposure to it in order to discharge obligations under work/occupational health and safety legislation. Although some may consider it extreme, the implementation of a COVID-19 vaccine mandate may be considered an effective method to do so. However, in circumstances where many individuals may have concerns surrounding the vaccination, it is important that employers exercise careful consideration and seek legal advice to ensure that any direction to mandate the vaccine for the purpose of employment is lawful and reasonable.

Aaron Goonrey, Partner, and Mayomi Kondasinghe, Graduate, Lander & Rogers