Did your employee refuse to be vaccinated? Here’s what you can do
COVID-19 vaccination drives continue to be enforced vigorously. The government looks at it as a key strategy to alleviate the health and economic impact of the virus outbreak. However, the issue of vaccination in the workplace has ignited debate between pro- and anti-vaxxers.
While many people still mull the idea of getting vaccinated, a growing list of employers is making vaccinations mandatory, as they are keen to safeguard employees and customers’ health, and ensure business continuity.
Air New Zealand, Qantas, Telstra, SPC, and Virgin Australia have made it mandatory for their employees to get vaccinated. Other companies like Commonwealth Bank and Westpac have also rolled out vaccination drives for employees and their families, especially for those in customer-facing roles.
These companies have agreed to make some exemptions for employees who are able to present reasonable proof not to get vaccinated. The policy was made flexible after facing backlash from unions and workers. Some companies have also taken employee feedback and tailored their policies accordingly. These exemptions find a place in companies' vaccine policies.
“If an employee refuses to be vaccinated (contrary to a specific law, agreement or contract that requires vaccination, or after receiving a lawful and reasonable direction), an employer should, as a first step, ask the employee to explain their reasons for refusing the vaccination,” states Fair Work Ombudsman in its guidelines.
If the employee has a legitimate reason to refuse being vaccinated (for example, they have an existing medical condition), then the employee and employer should consider whether there are alternatives to vaccination. This may include adjusting work arrangements.
Alternative work arrangements
“As long as employees still receive their entitlements, employers and employees can negotiate ways to make their work arrangements more flexible,” the FWO guidelines state. For instance, Air NZ welcomes the possibility of redeploying staff to other roles.
Employers can either offer these employees roles which can be carried out while working from home or discuss other arrangements that lead to a change in work hours or rosters.
Fair Work also encourages employees and employers to work together to find the best solution for both their workplaces and staff.
- Working from home
- Temporary changes to awards and agreements
- Resources for flexible working arrangements
Flexibility in the workplace allows employers and employees to make arrangements that suit them. Addressing and respecting the diverse needs of employees in this talent-driven era of work is not a choice but a necessity.
E tū union’s Head of Aviation, Savage, said it would conduct rigorous evaluations of the scope and detail of Air NZ’s risk assessments. Protecting workers from unemployment and loss of income is as important as protecting them from illness and death. As such, workers should not be forced to take vaccinations.
Is a disciplinary action required?
Whether disciplinary action is reasonable will depend on the circumstances. According to Fair Work, an employer may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of:
- a specific law, or
- a lawful and reasonable direction requiring vaccination
Employers generally don’t have the power to suspend employees without pay unless an enterprise or other registered agreement, award or employment contract allows them to. Further, employees have various protections against being dismissed or treated adversely in their employment.
HR and talent leaders should ensure they follow a fair process and have a valid reason for termination, or they may breach unfair dismissal or adverse action laws under the Fair Work Act.
In the case of Ms Bou-Jamie Barber v Goodstart Early Learning (U2020/11916), the Fair Work Commission ruled in favour of the employer in an unfair dismissal case brought forth by a former employee of a childcare centre. The worker refused to obtain a COVID-19 vaccine, even though she was required to work with children under the age of 5. She claimed to have a compromised immune system and was concerned about the effects of the vaccine.
In determining whether the direction to vaccinate was lawful and reasonable, the FWC considered a range of factors, including that:
- The government recommended vaccinations for childcare workers
- The employer implemented a vaccination policy
- The vaccine was available and funded by the employer
- The employer allowed time and provided consultation for the vaccination
- The employer had a duty of care towards the children in its care and an obligation to protect them against the spread of infectious diseases
- Young children were at significant risk of infection due to poor hygiene and an under-developed immune system
- Very young children could not be vaccinated, and
The employee only provided anecdotal and sparse medical evidence of her claims of a sensitive and compromised immune system.
The direction was therefore lawful and reasonable, and the dismissal was not unfair.
Encouraging employees to take COVID-19 vaccinations
Besides citing medical conditions, some employees are also not in favour of getting vaccinated because of indifference or lack of awareness. To encourage these groups, companies are promoting awareness and offering financial incentives and even care packages and paid leave for those who suffer from side effects.
Telstra CEO Andy Penn said that fully vaccinated staff are eligible for 200 ‘appreciation points’ that they can use in an internal online store. This is worth about $200.
“I understand some people have so far been unable to access the vaccine. So, we are going to keep this incentive program open until at least 31 December,” said Penn.
Another interesting initiative has been taken up by National Australia Bank, which told staff it would pay for the vaccination of someone in need in neighbouring countries like Fiji and Papua New Guinea for every one of its vaccinated employees. Auto parts company Bapcor also plans to give out $100 Visa gift cards to staff who get vaccinated.
The bottomline is: if an employer has provided a lawful and reasonable direction to be vaccinated and an employee refuses, the employer can ask the employee to provide evidence of the reason for their refusal. Through dialogue and empathy, both can come to an arrangement that works for them. It is not ‘one against the other’ but, rather, us against the virus and the economic downturn that the entire ecosystem is battling with.