COVID-19 Vaccination Mandates: The Collision of HR Law and WHS Law

Lockton Global Benefits Forum
Last month, Lockton Australia’s Employee Care Manager, Morag Fitzsimons led a conversation with industry leaders as part of Lockton’s 2021 Global Benefits Forum.

The panel consisted of Lockton’s own National Relationship Manager (Employee Benefits), Kerry Kostevski; GrainCorp’s General Manager, Safety Health & Environment, Nicole Lawler; Rachael Sutton, Partner at Mills Oakley; and Sarah McCann-Bartlett, CEO of the Australian HR Institute.

During the webinar, our panel considered the potential legal issues and workers compensation liabilities associated with mandating vaccines, a hot topic with more than half of the Australian population, over the age of 16, now fully vaccinated.

And although the government has not mandated COVID-19 vaccinations, Sutton said it’s becoming an inherent requirement of the job (particularly in New South Wales and Victoria), because to go to a workplace, you need to be vaccinated by virtue of the public health orders. 

She said, many employers who aren’t in the health or emergency services sector are asking, am I allowed to mandate vaccinations in my workplace? And if so, how do I go about it, given there’s no legislation to rely on?

“The approach larger employers (outside of travel, hospitality and health) are taking, is to look at their work, health and safety (WHS) requirements, in terms of conducting a risk assessment, to determine whether it can be a requirement for everyone to be vaccinated as part of their risk management process,” she explained. 

However, Sutton warned we’re seeing a collision of HR Law and WHS Law. In fact, there are already a couple of test cases brewing in New South Wales, which are challenging the public health orders on the basis of religion and personal choice. 

She believes, a potential two-tiered workforce (the vaccinated versus the unvaccinated) is going to attract all kinds of arguments about Common Law Liability, which will raise questions as to whether an employer has been negligent by not having a mandatory vaccination system, or whether it was reasonable for an individual to refuse to be vaccinated. 

Currently, employees are covered in terms of workers compensation, in most of the states and territories, but the government has also established a compensation initiative for adverse reactions to COVID-19 vaccines, for claims in excess of $5,000.

McCann-Bartlett said, “Communicating clearly, often and with respect, no matter what side of the fence employees sit on, will be really key, and no matter what vaccination stance you take in the absence of a public health order.”

Taking a step back, can an employer even ask their employees about their vaccination status?

According to McCann-Bartlett, the answer is yes. “Where there is no public health order in place, it has to be on a voluntary basis, and it does have to be anonymous. But going back to that point about communication, it will be important to explain why that information is being collected and to reiterate that it’s being collected anonymously.” 

Earlier this year, McKinsey carried out research that considered employee anxiety about returning to their physical workplace. “What they found, was that employees wanted certainty more than they wanted a particular outcome. In fact, just knowing reduced their anxiety, while not knowing increased it,” McCann-Bartlett explained.

This wasn’t a surprise to Kostevski, who suggested Australia is in a worse situation now, in terms of stress on employees, than when the pandemic first began. She said this is reflected in the influx of calls through to Lifeline.

Despite this, Lockton’s own employee assistance provider hasn’t observed a significant increase in demand for their services, which Kostevski said, is quite telling. She believes employers can do more to promote the services offered by employee assistance programs, and other employee benefit providers. 

Furthermore, she said, “Now’s a really good time to reevaluate, refresh and understand what benefit you can get for the investment you’re putting into your employees.”

For Lawler and GrainCorp, navigating the last 18 months has been really challenging. 

“Our initial response was very quick – we had an established process management team that got together even before there were cases in Australia.” 

She said throughout the pandemic, they’ve been focused on ensuring the safety of their workforce, protecting the mental health and wellbeing of their workers, and navigating the everchanging legislative environment.

“We’ve communicated often, even if it’s just to recognise the hardship our workforce is going through, and we’ve had to really change up our approach to wellbeing. Pre-COVID it was largely a face-to-face offering, so that went out the window as we headed into lockdown.”

So where to from here? Sutton believes the COVID period has really dispelled the myth that people can’t work effectively from home, however, there will be a proportion of employers who still think that working from the office is the only way to achieve work and efficiencies. 

“Being short sighted and requesting everyone back to the office at 80% is not going to be the approach you should take.”

Furthermore, Sutton encouraged employers to carefully consider whether they’re prepared to lose those people that have made a personal choice not to be vaccinated, especially when we’re dealing with a major skills shortage.

McCann-Bartlett said, whatever your position, it’s important that policies and procedures are changed and kept up to date.  

“We need to ensure we have a proper cycle in terms of reviewing and refreshing our policies and procedures, to make sure they’re current and have kept up to date with legislation.” 

Lockton Australia would like to thank all our panelists for devoting time to sharing their insights.

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