With the rise of covid cases, employers are reminded that they may need to consider offering more flexible working-from-home arrangements. Employers have a legal obligation to protect their worker’s health and safety by ensuring that all workers who can work from home are able to do so, and for those who cannot, the employer has set risk minimisation procedures in the workplace such as requiring employees to wear masks, to practice social distancing, have sanitisation stations, ensuring good ventilation and the like.
It may also be a good time for employers to update their policies including vaccination policy, working from home policy and WHS policy, and encourage employees to maintain up to date vaccination status for both covid and influenza.
In a recent unfair dismissal case, an employee argued that she was unfairly dismissed because she was not vaccinated. Her refusal of vaccination was because the vaccines hadn’t been properly tested; had adverse side effects; and contained “known toxins”. Further, she protested the “interference of a medical service upon me of unknown consequences”, in violation of her privacy, and said she felt subject to “unwarranted coercion and workplace harassment for which substantial compensation may be due”.
Fair Work Commission’s Deputy President Ingrid Asbury expressed hesitation that the employee’s argument was likely to succeed based on previous FWC decisions on the matter. She identified some guiding thoughts when considering the validity of such a claim including:
- the FWC had no power to make a binding declaration about health directives or orders;
- Australian courts have upheld the validity of directives/mandates in response to the pandemic, and rejected that state orders are invalid because they’re inconsistent with federal law;
- the employer in this case was prohibited by law from allowing the employee to attend her workplace unless she provided evidence of vaccination;
- requiring an employee to receive a vaccine to continue working wasn’t the same as forcing them to participate in a medical trial;
- incentives to encourage vaccination weren’t coercion;
- employees were entitled to their views, but their choice not to get vaccinated was just that – a choice;
- COVID vaccinations were approved pursuant to Commonwealth legislation and employers didn’t have to prove their safety or efficacy to employees, or the FWC; and
- employers weren’t required to lobby governments to have directives revoked or amended before dismissing employees for non-compliance.
In the absence of a specific federal, state or territory law requiring employees to be vaccinated, employers are encouraged to ensure that any request for an employee to be vaccinated is lawful and reasonable. This is assessed on a case-by-case basis. Our Can Employers make Covid 19 Vaccination Mandatory blog goes through these criteria.
BetterHR has created working from home, vaccination and work health and safety policy templates available as an individual purchases or as part of the professional and platinum subscription that can be tailored according to employer needs.
Please contact your BetterHR advisor to discuss the options available to vaccinate employees in your workplace.
