The dilemma of today for anyone running a business, relates to how they should best manage unvaccinated employees, clients, customers, and visitors.
As part of its portfolio of member benefits, the Boating Industry Association has been receiving support on behalf of its members, from Business Australia. In receiving advice, the Association is in turn advising its members to ensure they consider being informed as to their role in dealing with matters associated with the unvaccinated.
Business Australia have published several articles relating to the unvaccinated on their web site. Discrimination, Privacy and Bullying of Unvaccinated Workers and How to deal with unvaccinated Customers and How to Handle Unvaccinated Workers have been reproduced below.
Business Australia say that “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”.
DISCRIMINATION, PRIVACY AND BULLYING OF UNVACCINATED WORKERS
Are you clear on the rights of employees who aren’t vaccinated against COVID-19? What do you need to keep in mind to avoid claims of unlawful discrimination, bullying or breach of their privacy?
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.
HOW TO DEAL WITH UNVACCINATED CUSTOMERS
Are you up to speed on the rules for barring unvaccinated customers and clients? What steps will you take to train your staff to deal with the new requirements?
New public health orders mean that in some places, employers will need to direct their staff to check the vaccination status of customers and refuse entry to those who can’t show evidence they are fully vaccinated or have a medical exemption. Most patrons will probably comply without fuss, but the potential for customer aggression has some employers worried.
The new rules have generated controversy, with some business owners posting on social media sites their intention to flout the requirement to exclude unvaccinated people. Others, however, have observed that most customers will be vaccinated, and many of them won’t want to be in close proximity with unvaccinated people.
Businesses that fail to comply with the rules run the risk of fines if they allow unvaccinated customers in. And if your business is later identified as the source of a new outbreak – thanks to contact tracing and genomic testing – you may face investigation and prosecution, as well as damages claims by individuals who contract the virus as a result of your failure to put proper systems in place.
TEMPORARY EFFECTS ON SOME BUSINESSES
The timing and details of the new requirements differ across the various Australian states and territories, depending on the local situation and government incentives aimed at achieving a high level of vaccination in the general population.
In New South Wales, businesses that commenced reopening at the 70% fully vaccinated milestone have been required to take reasonable steps to ensure people who are not fully vaccinated don’t enter their premises. These restrictions are expected to apply to unvaccinated people until 1 December.
Reasonable steps include:
- displaying the vaccination rules from NSW Health in a prominent position, such as the entrance to your premises
- asking to see a person’s vaccination evidence, or for a child under 16 years of age, evidence of their name and address.
Publicans, restaurants, and café owners are among those who’ll have to turn away customers who haven’t had the jab. Other types of businesses with the same obligations include gyms and indoor recreation facilities such as squash courts, health studios, bowling alleys, and ice rinks.
Also on the list are hairdressers, beauty salons, massage premises, and entertainment facilities such as cinemas, theatres, and concert halls, as well as zoos, aquariums, sports stadiums, showgrounds, racecourses, motor racing tracks, theme parks, and outdoor events.
Hospitality venues can only offer takeaway to individuals who are not fully vaccinated.
For a full list of businesses subject to these requirements, see the NSW Government website.
Government ‘authorised officers’ will be monitoring businesses to ensure they comply with vaccination requirements.
Staff of ‘critical retail premises’ such as supermarkets, bakeries, fruit and vegetable shops, petrol stations, banks, and nurseries do not have to check customers’ vaccination evidence.
‘Fully vaccinated’ means having had two doses of a COVID-19 vaccine.
Vaccination evidence for people aged 16 and over includes:
- a COVID-19 digital certificate displayed through the Medicare App, Service NSW App, or equivalent smartphone wallet
- a printed version of the COVID-19 digital certificate or immunisation history statement
- successful completion of a Service NSW QR check-in that includes vaccination confirmation.
People who must be fully vaccinated to enter premises must carry their vaccination evidence, and produce it if asked to do so by police or an authorised officer.
Business owners have the right to refuse entry to customers who don’t show their vaccination evidence.
Prominent notices advising customers of the temporary restrictions may help staff tasked with checking the vaccination status of those wishing to enter or be served.
Temporary public health rule:
Until 1 December, to protect the health of our staff and customers, we are not able to serve unvaccinated customers.
Sorry for any inconvenience.
The NSW government provides a toolkit and suitable signs can be downloaded.
WHAT TRAINING WILL YOU GIVE YOUR STAFF?
When you instruct your workers on how to check customers’ vaccination status, note that some people may not wish to show evidence of their vaccination, and a few may become abusive. Staff should be directed to stay calm as far as possible and maintain a civil tone.
Advice on dealing with aggressive customers generally recommends that you don’t challenge or threaten the client or say things that will escalate the aggression. Arguing, yelling, and adopting threatening body language is definitely not a good idea.
Staff may be empathetic but remind the customer that the business could face a $5,000 fine for admitting an unvaccinated customer.
If you think there’s a strong likelihood that your staff may face a hostile reaction from customers, consider including a brief, informal role-play at a staff meeting to help prepare them to deal with contingencies.
If you don’t believe a person is fully vaccinated, you can ask them to leave. If the person refuses to leave, you can notify police.
HOW TO HANDLE UNVACCINATED WORKERS
When COVID-related restrictions ease, will unvaccinated workers be back at your workplace? Are they a risk to others? How should you deal with the situation?
The return of unvaccinated workers to the workplace raises thorny questions for employers, such as whether they pose a risk to others, how to know who’s vaccinated and who isn’t, and what to do if vaccinated workers don’t want to mix with those who haven’t had the jab?
With any luck, all or most of your staff will have had at least one shot of COVID-19 vaccine by the time they return to your workplace when the lockdowns end. But if you have some employees who are vaccine-hesitant, you’ll have to assess the risks this might create for vaccinated workers, customers, and visitors to the workplace. Remember too, that some people may have genuine medical reasons why they cannot be vaccinated.
WHAT ARE THE RISKS?
It’s clear that vaccinated people are less likely to become seriously ill or be hospitalised or die if they contract the virus, but there’s not yet enough evidence of the extent to which the vaccines protect them from being infected.
So, it’s possible that vaccinated workers may contract the virus from the unvaccinated ones who are infected but don’t realise it because they have few or no symptoms.
Conversely, unvaccinated workers may be infected by vaccinated workers, customers, or others who are symptom-free but are carrying the virus without realising it. The unvaccinated workers could then become seriously ill, or even die.
As a result, either vaccinated or unvaccinated workers could unknowingly infect their family, friends, and others in their community.
This means there may be a serious risk of severe health consequences for someone, either a worker or someone they have contact with.
Remember that some people are at greater risk of more serious illness with COVID-19:
- Aboriginal and Torres Strait Islander people 50 years and older with one or more chronic medical conditions
- people 65 years and older with one or more chronic medical conditions
- people 70 years and older, and
- people with compromised immune systems.
Work health and safety (WHS) laws oblige employers to eliminate or minimise any health risks to workers and others affected by the work, so you need to assess the risks at your own workplace and decide on the best way to manage it.
HOW DO YOU KNOW WHO’S VACCINATED AND WHO ISN’T?
The first practical question for employers is whether you’re entitled to ask staff if they’re vaccinated. This could raise issues in relation to privacy or discrimination.
The Office of the Australian Information Commissioner has advice on National COVID-19 Privacy Principles and guidance for employers on Understanding your privacy obligations to staff.
A person’s vaccination status is considered ‘sensitive information’ under privacy laws, so it’s afforded a higher level of protection than other kinds of information. Before asking, you need to assess whether it’s lawful and reasonable to ask an employee to disclose their vaccination status, in view of whether you need to know, in order to implement any COVID-19 control measures.
This assessment will depend partly on the type of work the person does. For example, does their work require them to be in close physical proximity to others, or to be in close contact with vulnerable people in the course of their work? If so, it’s possible that your duty under WHS laws may make it lawful and reasonable to ask about their vaccination status.
You shouldn’t collect vaccination status information from an employee unless the employee consents and the collection is reasonably necessary for your business functions and activities.
Technical fixes currently in the pipeline could mean that when a person scans the business’s QR code, their vaccination status will also be recorded. Meanwhile, proof of vaccination status could consist of a COVID-19 digital certificate or a person’s immunisation history statement.
WILL THE VACCINATED BE WILLING TO WORK WITH UNVACCINATED?
Safe Work Australia advises that under WHS laws, a worker can only cease or refuse to carry out work if they have a reasonable concern that it would entail a serious health or safety risk from immediate or imminent exposure to a hazard. This means a worker won’t generally be able to rely on WHS laws to refuse to work with an unvaccinated worker, but it will depend on the circumstances.
It’s important to talk with your workers to understand their concerns – and for them to understand your concerns – and to assure them you’ll continue to implement all other control measures known to reduce the spread of the virus, such as physical distancing, good hygiene and increased cleaning. These measures must remain in place, even if your workers are vaccinated.
SHOULD THE UNVACCINATED BE SEPARATED FROM VACCINATED?
Keep in mind that some individuals may have genuine medical reasons why they shouldn’t be vaccinated. Depending on the nature of the work and the workplace, it may be possible to allay concerns and alleviate risks through one or more measures such as having people continue to work from home, changing allocation of individuals to different shifts or rosters, making temporary adjustments to some people’s duties or physically separating some workers from others, to minimise exposure.
For more information on resolving workplace issues relating to COVID-19 vaccinations, visit Fair Work Ombudsman.
This information was produced by Business Australia https://www.businessaustralia.com/
A reminder that Business Australia say “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”.