Vaccinations and Your Business - Navigating the Grey Areas

Unless you've been living under a rock, you will have been impacted by the COVID-19 pandemic. As New South Wales looks to open after a four-month lockdown, there are things that small business owners are going to have to think about and prepare for. One of these things is around the vaccination status of people, including employees, suppliers, and customers. There is probably a lot of myths and a lot that people don't really know, where to get their information, or what to rely on. One thing that is certain now is that the information is constantly changing. So how can a business owner prepare for the coming out of lockdown? I recently had a chat with an expert in this fast-evolving area, Michael Seton. Michael's a solicitor director and accredited specialist with Ryan and Seton Lawyers. And he has been burning the midnight oil, keeping up to date with all the changes that are happening, and here are the key takeaways from our chat.

A changing landscape

In the past month, we've seen a lot of activity in this space. We've seen the prime minister summarise a briefing from the solicitor general on when employers can mandate vaccination, I'll return to that phrase, mandate a bit later. We've seen the Fair Work Ombudsman update its guidelines on managing vaccinations in the workplace. We've also seen Safe Work Australia issue its own guidance about vaccination. We've seen more and more industries and workers being added to the public health orders, with respect to required vaccination to operate in New South Wales. And in addition to all that, we've seen some large private sector employers, organisations such as Qantas, Virgin Australia, SBC, and others of that nature, they've come out publicly and stated that they will be requiring vaccinations for either all or at least a defined portion of their staff. And the interesting thing in the space now is that it is not only rapidly changing and updating, but it's also largely untested by the courts.

We don't have a clear black and white answer to a number of these questions. And a lot of the experts in this space are really grappling with these challenges and trying to come up with the best possible advice for business owners, employees, employers, and everyone else.

What situations can I insist that a staff member or a team member is vaccinated?

There are two real categories that Michael and his team must be aware of when we're giving advice in this space. First, there are industries that are affected directly by public health orders. And then there's basically everyone else. Now, if we're just talking New South Wales at present, the affected industries by the public health orders, they're quarantine workers, transportation workers, airport, residential aged care, authorized workers leaving areas of concern, construction workers who live in areas of concern, and a whole host of others that are updated sometimes daily, but often weekly. If you're in these categories, then if you're an employer, you must comply with the public health orders, in terms of insisting that staff members are vaccinated before they enter those workspaces. It's not optional. There are, of course, exceptions that apply for valid medical exemptions and things of that nature. But if you are an employer of people in that space and you don't have the relevant employees, vaccinated when conducting their duties, you, yourself, as an employer can be liable. And there are quite hefty penalties that are circulating now. The problem of course, in this space, is that the categories continue to grow, the local government areas of concern continue to grow or at least change.

Now, for those employers and I would suggest it's probably most of us, who fall outside those mandated industries, it really comes down to a question of what role the employee is undertaking? or what engagement they have with relevant members of the community? So, the now is that employers will be able to direct employees, as a condition of their employment, to be vaccinated if and only if the direction is lawful and reasonable.

Now, the question is obviously, what is lawful and reasonable?

And the guidance that Michael and his team are getting now is of course - fact-dependent. And in every case, will require a case-by-case assessment. Now, it's impossible to cover the field entirely, but the guidance they are getting from Fair Work and other authorities such as that is that there's going to be relevant factors that need to be considered when deciding whether you can say to a particular employee, or all our employees, or a segment of our workforce, whether they will be required to have a vaccination to continue their role. Some of those include the nature of the workplace, particularly the extent to which they might have employees who are public-facing.

So, if you came looking for a black and white answer, we're probably not going to get it in the short term, because what you've just described is you could have people doing the same job in different parts of, let's say, New South Wales, but obviously then could go out to Australia. People could be doing the same role in Dubbo that they are in Fairfield or Central Coast, and there could be different vaccine requirements.

Can you ask prospective employees if they are vaccinated?

The thing to consider here is - could the vaccination be a condition of employment that is lawful and appropriate to give in the circumstances that we've already discussed already? And if it is the case that, that is something that you could impose as a condition, then it will be equally reasonable to ask an employee and it will be reasonable to ask for proof. What that proof entails have sort of been largely grey until we've received the benefit of the digital vaccination certificates that have now become available to people. And that is a form of proof that is being accepted, certainly by a lot of the private sector and public sector operators that are requiring now. So, it will always fall on whether it is a lawful and reasonable condition that you can impose. And if it is, then it's a lawful and reasonable question you can ask, but if you fall at the first limb, you're probably going to fall at the second. Only a legal professional can help you determine what is lawful and reasonable in your circumstance and I encourage you to speak with someone like Michael Seton before you start asking this question at an interview.

Let’s avoid the phrase “mandatory vaccinations”

Something Michael was insistent on was the use of the term Mandatory vaccination as he thinks it's unhelpful because it doesn't really reflect the true situation as to what is contemplated by these sorts of requirements. There are no employers out there and certainly no guidelines from any authorities, saying that vaccination is mandatory, or compulsory, or you must have it. It's simply the case the vaccination is becoming a condition that people must meet to engage in a range of activities. Now, whether that be employment or otherwise. Employers in this space are simply making it a condition of their employment, that an employee would be vaccinated to carry out their role or part of it going forward. Those who choose not to receive a vaccination must be afforded the freedom of that choice and the dignity of making that choice. They shouldn't be treated as pariahs. That is something that, having offered the opportunity to place in their body, and they are entitled to make that decision. And we need to respect each person's decision. But of course, that decision comes with consequences. If there is a real risk that the employer needs to protect against, and the assessment of that risk will be different in every industry, as we've discussed. Then one of the conditions the employee may need to fulfill in today's world is vaccination. Yeah sure, that wasn't the case 24 months ago, that wasn't the case 10 years ago. But circumstances change, the world we live in changes. And if an employee chooses not to be vaccinated, then the employee is also choosing not to comply with the conditions of their employment. And that is a choice that's open to them, and this isn't remarkable. This isn't a new concept, conditions of employment change with changing circumstances all the time.

What might normal business look like when we open up?

It's ultimately going to depend on what public health orders are in place at the time. So right now, we have businesses who are allowing third parties onto their premises, whether that be customers at a cafe or tradespeople on a worksite, whatever it may be. And those people are required to comply with the existing public health orders. So, there are things like QR code check-ins, the use of face masks, the number of people per square meter, and things of that nature. And there are penalties for both the individual and the business for non-compliance. So, it's not simply good enough to say, "I'll put up a sign, I'll put up a QR code, and I'm hopeful that people will do the right thing." There's an onus on you, as an employer, to make sure that people who enter your premises are doing the right thing. Now, if it becomes a requirement that people entering certain spaces be vaccinated, and there's a mechanism available for checking the status of vaccination. The digital vaccination certificate is something in that space, then it may very well be that businesses are both able and expected to check on that status of vaccination as time marches on.

Now, in terms of the practicality of that, there's some talk now about the digital vaccination certificates being incorporated into the QR code check-in procedure, so that you won't get the green tick to say that you're successfully checked in if you don't make the required vaccination standard for certain premises. Now, that is, as I understand it, work is underway in the background, and we don't have a timeline as to when that might be rolled out. But certainly, if that became available, that would certainly assist business owners in undertaking that process, as they currently do, they can ask a patron to hold up their phone and show they're checked in. That'll just be part of that process. One aspect that will change for business is to appropriately consider who is responsible for checking the check-ins. They may be some people that may become aggressive if they are not let into premises. Now, it shouldn't be up to a young staff to stand up to quite a large chap, who is becoming increasingly agitated and aggressive. That's going to be something that business owners are going to have to manage as well. What situations their staff is going to be exposed to if that's the sort of behavior that starts to emerge.

This area is fast-changing and complex. As we open there will be more information that comes available, and things may (or may not) get a bit clearer. As you can see, your personal circumstances in most cases will drive how your business needs to tackle the vaccination issues. I recommend that you reach out to a professional to get advice before you make any changes.

The above is an extract from the Get To The Contest podcast between host Warwick Jackson and Michael Seton from Ryan and Seton Lawyers. The content is factual in nature and does not account for your personal circumstances.