The ideal situation for an employer is to have all employees, clients, customers, and visitors fully vaccinated, keeping their distance from one another, and wearing properly fitting masks, as well as excellent indoor ventilation, thorough cleaning, and good hygiene. In practice, however, such ideals are rarely achievable, and there are pitfalls for employers trying to do the right thing.
Unvaccinated staff members present one of the many challenges facing businesses. As well as presenting an increased risk of infecting others with the virus, unvaccinated individuals may be subject to – or complain of – unfair treatment amounting to discrimination, bullying, or violation of their rights under privacy laws.
Discrimination against unvaccinated staff
Whatever the reason for failure to vaccinate, employers must follow the public health rules that apply in their location. In New South Wales, for example, from 11 October, employers in Greater Sydney must require staff who are not fully vaccinated to work from home unless it’s not practicable to do so. If it’s not practicable for staff to work from home they can come to work, as long as it’s not at a business that re-opened at 70%.
The rules vary according to the type of workplace, and for staff in regional and rural NSW. See NSW Health for further details.
The rules differ from one jurisdiction to another. In Victoria, businesses in certain industries will have to turn away employees who have not had at least one dose of the vaccine, and employers who don’t comply could face fines of up to $100,000. Naturally, compliance with public health rules does not constitute discrimination by the employer.
In organisations where vaccination is not mandatory, Australian anti-discrimination laws make it unlawful to discriminate against a worker on the basis of disability, as well as a number of other protected attributes including age, race, and gender.
The Fair Work Act 2009 states that an employer must not take adverse action against an employee or a prospective employee on the grounds of the person’s physical or mental disability. There is a possibility that failure to vaccinate against COVID-19 may be held to be a disability in terms of the Fair Work Act.
It must be remembered that some people have genuine medical reasons for avoiding vaccination, though in other cases a refusal to vaccinate may be based on someone having succumbed to misinformation.
In cases where a staff member’s unvaccinated status could reasonably be construed as a disability, the employer’s duty is to examine the possibility of making reasonable adjustments to the working environment or processes to accommodate the person with the disability.
Reasonable adjustments in this situation could include:
- asking the unvaccinated person to work from home
- physically separating them in a part of the workplace isolated from others
- allocating them to different shifts and
- requiring them to wear a mask at all times in the workplace and have frequent COVID tests.
Whether such reasonable adjustments are practicable depends on the nature of the work and the workplace, the business’s COVID safety plan, and the level of risk of infection with COVID-19. In any case, the local public health rules must be followed.
If the situation is such that making suitable adjustments is clearly not feasible or would impose unjustifiable hardships on the employer, there may be a case for including COVID vaccination along with other inherent requirements of the job. In these circumstances, employers may be justified in rejecting job applicants or terminating a worker’s employment. However, it is recommended that employers seek legal advice before taking such a step.
Bullying of unvaccinated staff
Workplace bullying is defined as repeated, unreasonable behaviour by a person or group of people towards one or more workers, creating a risk to their health and safety.
On no account should unvaccinated workers be bullied due to their vaccination status, and this should be made clear to all personnel by way of management example, written policy statements, training, good management practices, effective communication, and encouragement to report bullying. The information provided to workers should include mention of the consequences of bullying and other types of unacceptable behaviour.
Any allegations of bullying should be treated seriously, confidentially, and consistently. The keys to an effective response are to intervene early, establish procedures to investigate and stop any bullying and provide support to resolve the issue.
It’s important to gain a clear understanding of the behaviours felt to be unreasonable and if possible to address the problem using a conciliatory approach to help individuals reach an outcome that will bring about an end to the unreasonable behaviour. More difficult cases may involve a workplace investigation, which must comply with standards of procedural fairness.
Privacy rights of unvaccinated staff
Under privacy laws, a person’s vaccination status is ‘sensitive information’, so it’s afforded a higher level of protection than other kinds of information. Before asking workers about their vaccination status, you need to assess whether it’s lawful and reasonable to ask, considering whether you need to know, in order to implement COVID-19 control measures.
This depends on the type of work carried out by the staff member. If they have to work in close physical proximity to others or have close contact with vulnerable people in the course of their work, it’s likely that your duty under WHS laws makes it lawful and reasonable to ask about their vaccination status.
Remember that privacy laws apply to the collection, storage, use, and disclosure of workers’ sensitive information. Merely asking to see evidence of an employee's vaccination status doesn’t raise privacy obligations, as long as you don’t collect (that is, make a record or keep a copy of) this information. You shouldn’t collect vaccination status information from an employee unless the employee consents and collection is reasonably necessary for your business functions and activities.
The guidance provided is general in nature. The guidance has been prepared without taking into account your specific objectives, financial situation, or needs. Before acting on any guidance you should consider the appropriateness of the guidance having regard to your objectives, financial situation, and needs. Before making any decisions, it is important for you to consider these matters and to seek appropriate legal, health, or other professional advice.