After yesterday’s announcement, many businesses are left reeling after learning that many industries will remain closed until November, and even then there are going to be heavy restrictions on trading.

So what else came into effect?

If you live in Victoria, we now have to distinguish between the vaccinated and the unvaccinated. With Dan’s Roadmap now announced many of you are no doubt scrambling to comprehend how this new world and apparent new normal is going to affect you personally. Whether you are an employee or business owner, the impacts are far-reaching and hard to get your head around.

No matter which side of the fence you sit on, vaccinated or not, it all feels a little like a dystopian movie playing out right before our eyes. One thing that is glaringly apparent is that the Victorian government now expects businesses big and small to be the enforcers of vaccine compliance.  Not only is this grossly unfair, given the past two years and the fact that many businesses are struggling to survive, it is also just another form of red tape that businesses are now expected to wade through with no real guidelines or understanding of the broader implications. Yes, this is an absolute shit show. And no one really knows how to manage this in a practical sense.

Many businesses are grappling with questions around whether or not they can or should mandate vaccines in their workplace and according to the latest COVID-19 Mandatory Vaccination Direction (No 2) that was announced on Friday 17th of September 2021, the application of these directions only applies to:

  1. Residential Aged Care Facilities
  2. Construction sites

What is really unclear is what employers should and can do if workers refuse to get vaccinated. The Fair Work guidelines are unsurprisingly very ambiguous and don’t really provide clear guidance about what to do. Many businesses don’t even really understand which tier they fall under and even then, it has not really been clarified in terms of which industries can lawfully mandate vaccination and those that cannot.

I guess the biggest question is can you terminate employees on the basis of their vaccination status?

Our advice is that each business and situation needs to be treated on a case-by-case basis as we are in unchartered territory here, with no precedents being set as yet. So businesses are best placed to get legal advice and develop a policy that is tailored to your specific requirements. As there is no one size fits all this topic is highly complicated and extremely divisive. We know this all probably seems really unfair but as each business, industry, and situation is different we can’t really give you a blanket approach or clear advice at this point.

What we can say is that if you do decide to mandate vaccines and your employees refuse, you should seek legal clarification as each situation is going to be different. In the first instance, it is highly recommended that you hold consultation meetings with each employee who is impacted giving them the opportunity to consider the implications of non-compliance, to seek personal medical advice, and then make an informed decision. This will protect you in the future if you do decide to terminate their employment as it will demonstrate procedural fairness.

What employers should know is that there are some upcoming cases that are to be heard in the High Court which will challenge the ability of employers to enforce vaccination as a condition of employment and we are highly recommending businesses wait it out until these precedents are set before taking any hasty action. If you are in one of the affected industries, one option is to encourage employees to take some leave if possible until there is some more clear guidelines and the cases have had a determination made. You don’t want to lose great employees who may be vaccine-hesitant or have legitimate reasons for not getting vaccinated. Our opinion is, if an employee can demonstrate that they have booked a doctor’s appointment, or a vaccination appointment then they should be able to continue to work as you monitor the situation this would apply until October 2nd for Construction.

We also know that if employees have a medical exemption for not getting vaccinated, then they would still be able to work, so ensure you understand the reasons for your employees not being willing to get vaccinated, or you could face adverse action claims.

In the meantime, it is unclear whether taking action such as terminating employees would be lawful.  We are also still unclear on the penalties for employers for not enforcing the vaccination mandates. Another area that has not really been stepped out is record keeping around vaccines, privacy guidelines i.e. whether you can pass on this status onto clients or use this as a condition of employment on job applications. Should be an interesting few weeks and months ahead in this space.

As always we will keep you posted with updates, and if you have any questions please reach out. We work really closely with an employment lawyer with Maddocks Law and we would be happy to put you in touch should you need further personalised legal advice.

Written by Emily Jaksch

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