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COVID-19: Other options for businesses than mandatory vaccinations

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With the federal government ruling out mandatory vaccinations, a leading Hunter employment lawyer says businesses have other measures to ensure they can continue to operate “more normally” and protect the health of employees, customers and visitors.

Head of employment and industrial law at Australian Business Lawyers & Advisors’ (ABLA) Newcastle office Kyle Scott said vaccination was clearly the way out of economically damaging lockdowns and restrictions.

He added economists estimate the current “stay at home” orders are costing NSW about $1 billion a week and impacting people’s salaries and businesses bottom line and survival.

“It is in everyone’s interest for employers to facilitate the uptake of vaccinations,” Mr Scott said.

“The National Cabinet’s four-step plan strongly encourages vaccinations, but except for some high-risk sectors such as aged care, we are unlikely to see vaccinations mandated.

“We’re likely to see regulatory measures in some sectors over mandating vaccination.”

Mr Scott said mandating vaccinations was not straight-forward for businesses because of a range of laws, which cover WHS, privacy and discrimination.

“The legal test seems straightforward, but its application is very tricky,” he explained.

“An analogy is we know smoking cigarettes is bad, can even kill, but an employer can’t or wouldn’t issue a direction to staff requiring them to give up smoking.

“Whether it is reasonable to require vaccination depends on the risks within the industry, the nature of the work being performed, and the amount of interaction staff members have with others.

“Only after businesses have implemented control measures, and encouraged or incentivised employees to get vaccinated, should they look at mandating vaccinations.”

Control measures include ensuring and enforcing physical distancing, good hygiene, mask wearing, and compliance with other public health order measures.

Incentives to encourage staff to get vaccinated include paid leave to go and get vaccinated and other rewards such as vouchers or gifts.

Kyle Scott.

Mr Scott said, under Work Health and Safety (WHS) statutes, businesses had a legal primary duty of care to employees and worksite visitors to take all steps that were reasonably practicable to ensure their health and safety.

Employers can also issue reasonable and lawful directions to their employees.

“Workers’ compensation may be an issue if a business directs vaccinations and then someone suffers an adverse reaction,’ he said.

“But, if employers don’t encourage vaccination and a staff member contracts COVID-19 at work there can be a risk for the business.

“WHS obligations don’t necessarily require businesses to direct employees to be vaccinated but they likely mean businesses need to be encouraging employees to get vaccinated.”

Mr Scott said the other minefields for employers were staff who had a valid exemption from vaccination, asking for proof and whether a business stopped doing business with another because their staff weren’t vaccinated.

“The Privacy Act means an employer generally can’t collect proof of vaccination,’ he added.

“As a business, you can refuse to provide services to particular customers, and you can impose requirements on subcontractors or other businesses – with the exception that if someone has a valid medical exemption.”

He said if an employee was refusing vaccination on philosophical grounds that would be a disciplinary matter.

“Before moving to dismissal businesses can look to redeployment or alternative working arrangements such as working from home.”

ABLA is hosting a free lunchtime webinar for employers on managing risk with COVID-19 and vaccinations on August 25.

Bookings and details at www.ablawyers.com.au

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