By Megan Breen

As vaccination rates rise across Australia and New Zealand, employees are packing up home offices and starting to head back to workplaces. But as COVID continues to circulate, employers are faced with new challenges in protecting the health and safety of their staff.

Zac Hayes CA, managing director at The Business & Wealth Collective in southern NSW, has already had ‘the conversation’ with his team. He says the decision to operate as a fully vaccinated team was unanimous.

The Collective is a partnership of regionally focused businesses that includes accountants, financial planners, business systems experts and, unusually, The Travelling Podiatrist.

“I am quite proud of my team,” Hayes says. “We sat down together last year and discussed it. We all did our homework on it and every single team member was OK to get vaccinated.

Picture: Zac Hayes, managing director at The Business & Wealth Collective in southern NSW.

“We all did our homework on it and every single team member was OK to get vaccinated.”

“We have contracts with health and aged-care facilities and while we are required to follow government directives, we are also aware of the vulnerable status of people in those facilities.”

Hayes also had to consider the risks of working with clients who may not be vaccinated.

“We have two clients that aren't being vaccinated and we respect that decision,” he says. “But at the same time, if that jeopardises our work with other clients who are vulnerable in aged-care homes, then we have to say, ‘Maybe we are not the accountants for you moving forward’.

“The world's changed and these are the rules that we're working with,” he adds. “We have to respect everybody's decision on vaccination and somehow we can make this work.”

Returning to workplaces

The health advice from experts is clear: the best protections against COVID-19 are vaccinations combined with measures such as cleaning, mask wearing and social distancing.

In Australia, several large employers including PwC and Deloitte, Westpac and the Commonwealth Bank have already mandated that staff must be double-vaxxed to attend the workplace. Woolworths and Aldi supermarkets are demanding that staff be fully vaccinated. Coles has mandated vaccinations for employees in NSW, ACT and Victoria.

Sally Woodward, Industrial Relations and Employment Law partner at PwC Australia, says a policy to mandate vaccinations can come from employers’ health and safety obligations, which require them to eliminate or reduce risks to their employees as much as they can.

“It's clear from the health experts that mass vaccinations are a necessary part of providing long-term protection against the virus,” she says. “Employers have underlying workplace health and safety obligations to ensure – so far as is reasonably practicable – that their employees are safe at work. Some employers are mandating vaccines as part of that.”

But first, there must be a risk. Woodward adds that a risk assessment forms the basis for the “lawful and reasonable direction” to mandate vaccination as a condition of employment.

“An employer has the right to give a reasonable and lawful direction to their employees and in considering the decision to mandate a vaccination, you look at the nature of the industry, the nature of the particular employee's role, the level of COVID within the community and assess the risk.”

“In considering the decision to mandate a vaccination, you look at the nature of the industry, the nature of the particular employee's role… and assess the risk.”

What if an employee refuses to get vaccinated?

So what happens if an employee refuses to get vaccinated?

“If it's a reasonable direction, then an employee's refusal to follow could give rise to disciplinary action, which could include termination of employment,” says Woodward.

“You've got to ensure that you carry out a fair process before termination – there are potential claims that an employee could bring if their employment is terminated.”

In Australia, if an employer makes vaccinations a mandatory condition of employment, this could be classed as discrimination if someone cannot be vaccinated due to a disability or other attribute. Similar laws apply in New Zealand.

Making a ‘reasonable adjustment’

Rohan Tate, a Brisbane-based employment law associate with Maurice Blackburn Lawyers, says individual cases seeking exemption from vaccinations should be considered in the context of what they are required to do and how it can be performed.

“Before mandating a blanket vaccination policy it is a good idea to seek legal advice,” he says.

“If someone can establish that they have a disability – that is, some sort of medical condition that means they cannot get vaccinated – and this is supported by appropriate medical evidence, then an employer has to make reasonable adjustments for that person under federal discrimination laws, in so far as the reasonable adjustments don't create an unjustifiable hardship for an employer.

“However, it may be that no reasonable adjustments can be made in certain sectors. This really will involve a case-by-case assessment,” Tate says.

Australian and New Zealand laws

The Australian government’s policy is that vaccinations are voluntary for most Australians, although it is advocating that as many people as possible make the decision to be vaccinated.

To assist employers, the Fair Work Ombudsman and Safe Work Australia have guidance about workplace rights and obligations during the COVID-19 pandemic under employment law and work health and safety law.

In New Zealand, the Bill of Rights Act guarantees the right of citizens to refuse medical treatment, which includes vaccinations. However, this law must be balanced with the Health and Safety at Work Act, which places obligations on employers to evaluate risk and protect staff and customers from harm.

Mary Breckon O’Sullivan, a senior solicitor with law firm Simpson Grierson in Auckland, says while there are some similarities with Australia’s laws, New Zealand differs in that vaccination is only determined as necessary when it comes to specific roles.

“In New Zealand, it is on a case-by-case basis and vaccination is required only for certain roles, as opposed to all staff,” she says. “WorkSafe has listed what employers should consider when undertaking a health and safety risk assessment to support any decision to mandate vaccinations.”

“In New Zealand, it is on a case-by-case basis and vaccination is required only for certain roles, as opposed to all staff.”

The New Zealand government has made vaccinations mandatory for people performing specified roles in border control and correctional services, education, health and the disability sector.

It is introducing a COVID-19 Protection Framework, which includes vaccination certificates as a condition of entry to many places. WorkSafe has prepared a guide to help employers understand which roles may require a vaccinated employee.

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