In this help sheet series, Our Community’s resident agony uncle, Chris Borthwick, offers answers to frequently asked questions about issues not-for-profits are facing.
Dear Agony Uncle,
Our organisation is going around in circles trying to understand the rules that apply to vaccinations in the workplace. We employ 20 staff in two states, and we have around 10 long-serving volunteers on our books, although none of the volunteers have been engaged since lockdowns began. All our staff are currently working from home. Anecdotally, we think that most but not all of them have had two jabs (we haven’t conducted a survey). And again anecdotally, we think that a few don’t intend being vaccinated, either because they don’t believe in it or for medical reasons. Where do we start?
- Overwhelmed, NSW
Agony Uncle’s answer
I sympathise with your position. There is a great deal of new information about workplace vaccination to come to grips with, and doubtless yours is not the only organisation feeling concerned. I’ve attempted to distill the issues here into a Vaccination FAQ – I hope this is helpful.
Our Community’s legal partner, Maddocks, has provided guidance on this issue too, along with links to further information on vaccinations in the workplace.
With the above and below in your toolbelt, I think you’ll be reassured to find that there’s really no need for your organisation to continue in circles.
Is vaccination the right thing to do?
Absolutely. The best medical opinion is absolutely united on this. At another time, in another pandemic, this may not be as true, and we’ll cross that bridge when we come to it.
Should our organisation encourage employees to get vaccinated?
Absolutely. You should be doing everything in your power to facilitate this. You should be
- giving paid leave to people to have vaccination appointments
- giving leave to anybody who has a bad reaction to vaccination.
You could be
- giving incentives – money, free pizza, whatever – to anybody who gets vaccinated.
Can our organisation order employees to get vaccinated?
No. Certainly not. That’s well beyond the powers of any employer.
Can our organisation say that employees who don’t get vaccinated may lose their jobs?
Yes, with a few exceptions (see below). You can, and in most roles, you must. Your organisation is legally responsible for protecting the health of the people who come into your workplaces. If this can’t be done except by keeping unvaccinated people out – and the medical advice seems to be just that – it’s your duty to do just that.
Yes, it would be a lot easier if the government took the lead and passed legislation to place the matter absolutely beyond question. They’ve largely squibbed it, but there’s still only a minute risk of blowback.
Should our organisation say that employees who don’t get vaccinated will lose their jobs?
It depends. Is there a way to get round it? Work out where the risks are likely to come from, and who will be exposed to them. Talk it through with your staff (this isn’t optional; it’s required both by OHS law and by your industrial agreements).
Is there any alternative? You don’t want to lose staff, however misguided they may be on this one point. Is there a feasible way to keep the unvaccinated out of contact areas? Can they work from home without having to contact any other staff or clients, or, indeed, never perform any work outside their home? Is there any prospect of their taking leave without pay until it’s all over (if it ever is)?
If you can’t fix it, though, you can’t. You should be making any feasible accommodations that don’t involve increased risk, and refusing any compromise on those that do. At that point, you go into your disciplinary procedures and move to termination.
Will we be sued if we enforce staff vaccinations?
Are you sure?
Are you absolutely sure?
Anybody can be sued for anything, if the person doing the suing is determined enough.
- If you've done your best, you’re more likely to be struck by lightning than you are to be sued about this;
- If you are sued about this, you’re more likely to be struck by lightning than to lose.
Don’t fret about long-shot hypotheticals. I’m absolutely sure your organisation has more urgent problems.
What exemptions do we have to grant?
A very, very small proportion of Australians have genuine medical problems with vaccination, and medical exemptions have to be honoured. You’ll then be faced with the task of fitting them into your work without compromising safety.
What exemptions don’t we have to grant?
Some Australians have raised the possibility of religious exceptions to vaccinations on the grounds that the vaccines may contain stem cells. This is not in fact true, according to the Pope, but even if it was it’s not binding on employers given the significant health risks of employees remaining unvaccinated.
Claims for exemptions on the grounds of denial of ill-defined "freedoms" are frankly laughable.
Can our organisation require volunteers to get vaccinated or leave?
Anything that applies to employees goes double for volunteers (who don't have a financial interest in anything) as the person engaging the volunteer can set the parameters of the engagement. Still, you don’t want to lose volunteers, either, and if you can work out a safe accommodation then do. Can they work online?
Can our organisation require clients and visitors to get vaccinated to enter the building?
Absolutely. You have absolute control of how you deliver your services, subject to anti-discrimination laws – and those don’t include vaccination status as a protected class.
Should our organisation require clients and visitors to get vaccinated to enter the building?
Probably. There might be circumstances where you couldn’t deliver essential services without seeing unvaccinated people – Casualty, say – and at that point it’s your decision based on all the circumstances.
Put up a sign outside so that people know what their choices are. Check the vaccine status of visitors.
How do we keep unvaccinated people out of our events?
Check their vaccination certificates. After that it’s a security issue, like keeping out drunks or, if that’s your thing, people not wearing shirts or shoes. I’m not saying there may not be unpleasant scenes, but unpleasant scenes aren’t fatal and COVID-19 often is.
Can we be sued if someone catches COVID at our workplace?
Just conceivably, if you were negligent. But look, Australia’s had 150,000 cases and 1500 deaths and nobody’s been successfully sued so far – and the world has had 5 million deaths, ditto – so don’t let it keep you awake at night. Also, your workers comp insurance should cover you. Do your best, follow the official guidance, and you’ll be fine.
As for the rest, look up the procedures in your state.
Ask Agony Uncle
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