In determining whether or not to implement mandates for COVID-19 vaccinations, legal employers should first be aware of common misconceptions about such mandates and also appreciate key takeaways from the examples of SPC and Qantas, said one principal.
In conversation with Lawyers Weekly, Gilchrist Connell principal Joel Zyngier – who recently penned an op-ed outlining factors for consideration with vaccine mandates – said that there is a misconception circulating in the national discourse that a mandatory workplace vaccination policy forces workers to be vaccinated against their will.
This is untrue, he said.
“Such a policy just provides that workers must be vaccinated in order to continue in employment at a particular job. Whilst this may present a difficult choice for some, it is still a choice,” he advised.
Another misconception, Mr Zyngier continued, is that mandatory workplace vaccination is a social or political issue, when it is in fact not, he noted.
“It is, primarily, a health and safety control measure, just like hi-vis vests, hard hats, traffic management plans and anti-bullying policies. When it comes to workplace safety, employers are exposed to criminal prosecution if they fail in their duty of care. If they need to impose mandatory vaccination policies to ensure health and safety, they must do so,” he detailed.
“Moreover, the commercial considerations are significant; it is critical to be able to operate without fear of having a significant proportion of a workforce/workplace off sick for lengthy periods of time.”
Gilchrist Connell, Mr Zyngier’s firm, provides workplace relations, health & safety advice to SPC, which earlier last month mandated COVID-19 vaccinations for all on-site staff and visitors. Employment lawyers spoke with Lawyers Weekly about the company’s capacity to implement such a mandate here.
In the context of the firm’s relationship with SPC, it told Lawyers Weekly, it has been “speaking regularly with SPC’s senior management regarding its position on mandatory vaccinations”. The firm does not advise them specifically on this issue, it highlighted.
SPC chairman Hussein Rifai discussed the company’s mandate with this brand, noting that – when one looks at close contact locations – much of the spread happens at the workplace in places “where it’s legally open”.
“They, in turn, infect their households,” he said.
“The government has to provide business with legal cover to allow business to mandate staff to be vaccinated where staff have to work together and cannot work online only. It's critical in breaking the infection cycle.”
Broadly speaking, “as SPC has publicly stated”, Mr Zyngier said, the chief legal consideration underpinning its decision to mandate COVID-19 vaccinations is its duty to provide a safe workplace.
“The primary commercial considerations are that a COVID-related shutdown, especially during the picking season, would be devastating for its workers and suppliers, as well as potentially having negative impacts on consumers unable to purchase SPC’s products,” he outlined.
The lessons to be taken from SPC’s and national airline Qantas’ decisions to mandate vaccines, he went on, are that for many employers, mandatory COVID-19 vaccination will be a lawful and reasonable direction with which employees must comply.
“Consultation with employees is important but the decision is a managerial prerogative. Exemptions on medical grounds and the impact of discrimination laws must be taken into consideration but ultimately workplace safety is the most important consideration of all,” he submitted.
“The Fair Work Ombudsman’s four tiers provide helpful guidance but each workplace, work arrangement, work type, and job must be assessed on its own merits in light of an employer’s safety duties.”
In light of such lessons – as well as the four tiers – best practice for law firms and law departments across the country, Mr Zyngier determined, “will be to undertake a careful and considered analysis of whether mandating COVID-19 vaccination for some or all employees is a reasonably practicable step to ensure their health and safety, and the health and safety of others affected by the business”.
“If so, law firms and departments should consider whether they may give lawful and reasonable direction to employees to be vaccinated. In many cases, people who can work entirely remotely may not need to be vaccinated in order to safely work,” he said.
“However, as we eventually (fingers crossed!) open back up and return to the office, having a vaccinated workforce is likely to be a critical means of ensuring safety and operational certainty. Of course, a law firm’s decision to mandate or not will be dependent on a range of factors including their size, practice area/s, location, and clientele.”
When asked to what extent should a decision by legal employers to mandate be an ongoing consideration, with states and territories set to open up once their respective populaces a certain percentage of vaccinated persons, Mr Zyngier noted: “As with all safety risks, employers in the legal sector should continually evaluate whether they are using the best reasonably practicable measures to control the risk to health and safety.”
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