As we adopt a ‘living with COVID-19’ mentality, State Governments are slowly shifting their position and allowing organisations and individuals to manage their own risk in relation to mandatory vaccination.
In what may be a signal of things to come, the South Australian State Government has lifted mandates for teachers and transport workers. However, some restrictions on unvaccinated teachers remain, including the requirement to wear masks indoors, take regular Rapid Antigen Tests, and a prohibition from teaching students in vulnerable communities.
The Queensland State Government has also begun easing restrictions imposed on unvaccinated people visiting many public venues from 14 April 2022 onwards, though restrictions will remain in place for vulnerable settings such as aged care facilities and hospitals.
The New South Wales State Government has also eased the mandatory requirements for a number of workers and narrowed the definitions for those required to be vaccinated.
While the Government mandates still place the burden on employers in terms of compliance and enforcement, it has been continuously found by the Courts and Commissions that employers are able to rely on non-compliance with those mandates as a basis for dismissal.
However, as those Government mandates are lifted, employers who wish to maintain a mandatory vaccination policy will have the added burden of satisfying the Courts or Commission that such a policy is reasonable in the first place.
Given how quickly the rules around vaccines are changing, employers should now be considering:
a) taking steps to consult on and implement a vaccination policy that will remain in place beyond the Government mandates.
b) how the lifting of the Government mandates may impact any employees who have not yet complied;
c) any obligations under applicable privacy legislation when collecting health information.
Importantly, creating a health and safety policy (particularly one involving mandatory vaccination) is not “a one size fits all” task. That is, a policy that is acceptable for one employer may not be held to be reasonable for another. Consideration must be given to the industry in which the employer operates and the employees to whom the policy is applied.
Other considerations include privacy obligations, discrimination legislation, consultation and modern award or enterprise agreement obligations.
We have already seen a significant increase in vaccine mandate-related employment claims. Such claims are only likely to increase once Government mandates are lifted and employers must satisfy the additional burden of demonstrating that any employer-driven policy is reasonable, lawful and has been implemented correctly. It is, therefore, critical to obtain legal advice on the above matters before proceeding with such a course.
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