With Australia’s State borders opening (South Australia from Tuesday 23 November 2021) along with the resumption of international travel, Commercial & Legal, Partner Nicolas Graham states, “all businesses are having to review the way they operate and connect with their customer base and clients to ensure they remain viable as we adjust to a ‘COVID normal’ life”.
Coupled with the easing of many social restrictions, including density limits at public and private gatherings relatively COVID-19 free States like South Australia are expected to experience an abrupt surge in locally acquired COVID-19 cases, hospitalisations, quarantining, and general business interruptions from affected staff and temporary closures. Graham says, “all businesses must consider what their business practices will look like in this new climate, undertake a risk assessment of their existing workplace practices, and implement an effective COVID-19 management policy. It is only with a policy of this kind that businesses will be able to ensure the safety of their employees and customers, mitigate legal risks and give themselves the tools to succeed in a rapidly changing regulatory environment”.
Graham emphasised “the most pressing issues that businesses are likely to face, include the viability (and legality) of a vaccine mandate, increased staff leave and work from home requirements, potential liability for worker’s compensation and breach of privacy laws, and the risk of WHS prosecutions”.
With a surge in COVID-19 cases inevitable, many businesses have looked to introduce vaccine mandates in the workplace, to protect their staff and customers. This had led to widespread concern amongst business owners as to the legality of vaccine mandates and the potential impact that taking this approach to COVID-19 management might have on their businesses.
So, is it legal for businesses to implement a workplace policy requiring mandatory vaccinations?Graham says, “The short answer is yes, and businesses must certainly consider implementing such policies if it is determined necessary to protect their employees and customers. As with all workplace policies, the decision to impose a vaccine mandate should not be taken lightly and should only be done after balancing a variety of factors and considerations”.
“There are arguments both for and against vaccine mandates in the context of the workplace. One of the most common concerns amongst employers considering implementing such policies is potential liability for worker’s compensation if an employee is given a lawful and reasonable direction to obtain a COVID-19 vaccination and subsequently experiences an adverse reaction. Much to the comfort of employers, given that the federal government has implemented the COVID-19 vaccine claims scheme, which covers the costs of injuries $5000 and above suffered due to the administration of a TGA approved COVID-19 vaccination, an employer’s potential liability for worker’s compensation in this context is only really capped at $5000. Conversely, a commonly overlooked issue is the potential to be held responsible for a worker’s compensation claim should a vaccinated employee become infected with COVID-19 from an unvaccinated employee. To this end, the federal government offers no such compensation scheme and employers will likely be required to foot the bill themselves. It might be that risking $5000 in liability by requiring that employees get vaccinated is far more desirable than risking potentially hundreds of thousands of dollars in worker’s compensation, should there be an outbreak of COVID-19 in the workplace!”
“For customer and client facing businesses, including restaurants, cafes, retail stores and even some offices, worse is the potential for an unvaccinated employee to infect a member of the public with COVID-19. This could lead to WHS investigations against the business and potential prosecution, which poses the risk of hefty fines and penalties if the business is found to have unsafe COVID-19 management processes, with cases in point being the multi-million-dollar prosecutions of several large Australian corporations”.
Graham suggests, “That is not to say that every workplace should implement a COVID-19 vaccine mandate; only that this is an issue which should be carefully considered on a case-by-case basis and only after having a professional risk assessment undertaken for the business”.
Risk Assessments: A way of the future
For business owners wishing to obtain an advantage in this COVID-19 market and to ensure their businesses are fully compliant with relevant work, health, and safety legislation, as well as ensuring the safety of their employees, Graham recommends “a professional risk assessment be conducted along with a detailed review of current workplace policies and procedures, which should include a consideration of the business’ day to day management of its employees. This is the only tool that can ensure that businesses place themselves in the best possible position to combat COVID-19 related risks and set themselves up for success”.
A professional risk assessment can assist businesses to consider:
- Any physical changes required in the workplace to ensure the safety of employees (and to mitigate the business’ potential liability);
- The necessity for a workplace vaccine mandate; and
- Whether existing human resource management processes should be amended to minimise the business’ liability and ensure compliance with all relevant legislation and regulations.
Graham says, “Businesses should act swiftly and look to undertake these risk assessments sooner, rather than later, to ensure a smooth transition into the next phase of living with COVID-19 in our community”.
Author: Commercial & Legal, Nicolas Graham, Partner (Disputes & Litigation) & Evangelos Toskas, Solicitor
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