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How to manage the unvaxxed workforce

If and when legal professionals return to the office in 2022, managing staff who are not vaccinated against COVID-19 will be a “thorny issue”, says one BigLaw firm.

user iconJerome Doraisamy 05 January 2022 Big Law
How to manage the unvaxxed workforce
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National law firm Maddocks has published its Year in Review 2021: Employment, Safety & People report – its sixth such report – highlighting the issues that have been addressed in employment, safety, industrial relations and discrimination; notable cases, as well as exploring the implications for 2022 and beyond.

In it, the firm’s eight partners from its employment, safety and people practice group (Vanessa Andersen, Meaghan Bare, Catherine Dunlop, Bruce Heddle, Ross Jackson, Michael Nicolazzo, Lindy Richardson and Maree Skinner) considered how best employers could navigate dealing with staff who have not received the requisite vaccinations against coronavirus.

2022, the partners wrote, “will be the year this issue rears its head”.

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In some organisations, staff vaccination is mandated by public health orders, and in others, employers have issued directions to staff that they must be vaccinated in order to attend work, they reflected.

This is an untested area,” they warned.  

They noted that they expect “more concrete guidance” to emerge from courts and tribunals in due course, but in the meantime, there are numerous practical points that employers must bear in mind so as to ensure lawful and reasonable directions in the workplace, they said.

The first consideration, the partners noted, is safety.

“What is the risk of allowing unvaccinated staff to work on company premises or other workplaces or meet with clients? A thorough and bespoke risk assessment is required and should be continually reviewed,” they said.

“Do you need your workers in the office, meeting clients, or attending events for at least some of their working time? For most employers, the answer to this question is probably yes!

“Have you arrived at the conclusion that vaccination should be mandated for staff attending work? If so, consult, consult, consult with your workforce, health and safety committees and any industrial organisations before issuing the direction. Consultation will be required under WHS/OHS legislation and may also be required under applicable industrial instruments.”

Further, the partners continued, consultation doesn’t mean agreement.

“Listen, consider mindfully and allow enough time for workers and unions to contribute to the consultation process. Implement a policy on vaccination and a procedure which includes how unvaccinated workers will be managed,” they suggested.

They also advised considering what can be built into policies and procedures so as to minimise disruption as well as legal risk.

“Given the current skills shortage faced by many employers, it could make commercial sense to include a grace period during which the vaccine hesitant have a final opportunity to get vaccinated and, where possible, introduce interim measures for these workers to mitigate risks in the meantime, this could include continuing work from home or authorised leave without pay for a short period,” they wrote.

When it comes to risk, “this isn’t one size fits all”.

“If termination of employment is the only option, then ensure there is a fair process for all workers. A way to do this is by issuing a show cause notice which invites workers to respond as to why their employment should not be terminated on notice,” they said.

“Mindfully consider the responses and determine if termination of employment is still appropriate to minimise the risk of successful unfair dismissal or discrimination claims. Take advice on this if needed.”

Ultimately, the Maddocks partners surmised, employers need to remember their obligation is to provide a safe workplace.

“As we move forward, this will continue to be expectation for workplaces and should be continually reviewed as directions change,” they deduced.

“Consult and communicate openly and clearly with your employees about any changes regarding vaccination requirements, office attendance and/or expectations about how they are to fulfill their job requirements.”

Finally, they wrote, “consider what amendments to your policies and procedures need to be made, and allow your employees time to ensure they are compliant”. 

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