No Jab, No Job: A reasonable mandate or a draconian measure?
Tensions over mandatory COVID-19 vaccinations at work continue to heat up, and businesses are either contemplating the idea or getting ready to implement policies requiring the jab.
But are these measures going overboard? In fact, one company recently axed one of its vice presidents for allegedly failing to comply with its vaccination policy to combat the pandemic. Rob Atkinson, CEO of Newmont, the gold mining company that fired the VP, said the official in question expressed unwillingness to “support or promote the company’s position with respect to COVID-19 vaccination”.
In another case in Australia, Ozcare also dismissed an employee who refused to take the flu vaccine because of a supposed childhood condition. At the time, the Fair Work Commission upheld the dismissal, purporting that unvaccinated community-care employees could become potential super-spreaders of the flu.
In the case Maria Corazon Glover v Ozcare  FWC 2989 (26 May 2021), it was made clear that the employer’s condition for an employee to get vaccinated could not be placed upon arbitrary grounds but depended on a range of factors, such as the sector of work and individual risk factors. However, if an employer unjustifiably mandates vaccination then sacks the employee for non-adherence, then the employer might find themselves at risk of a claim.
With more companies making vaccinations mandatory for the workforce, unions are opposing the measure and calling it unreasonable. The debate follows concerns raised by both employers and employees. What rights do companies have -- and can workers oppose them?
Overall, how can vaccination policies be more inclusive of and empathetic towards segments of the workforce who face lingering fears for their own health? Let's explore:
Is the demand for mandatory staff vaccinations reasonable?
The debacle between unions and businesses took a dangerous turn at food manufacturing giant SPC, whose recent announcement of mandatory vaccinations for all workers was violently resisted by anti-vaxxers. In response to the issue, Safe Work Australia Chair Diane Smith-Gander echoed the sentiments of employers who want their workers inoculated.
Given the shortage of vaccines, however, employers have also been advised that it might not be reasonable to expect everyone to be vaccinated immediately. Workers should thus be given enough time to comply. Employers would also need to assist their employees in getting their doses and in answering their concerns regarding vaccination.
Smith-Gander recommended the government issue a public order to end the clash between the SPC and the workers.
Demanding more support for workers getting vaccinated
“When it comes to how vaccine status impacts an employees’ willingness to return to the workplace, Australians are almost split down the middle,” said Crissa Sumner, Employee Experience Solutions Strategist, Qualtrics Australia and New Zealand.
Qualtrics research from earlier this year found half of respondents were either unsure or did not plan to return to the workplace until everyone was vaccinated. A similar study from the US found 37% of employees would quit if vaccines weren't mandated, while 44% said they'd consider quitting if they were required.
Steve Murphy, national secretary of the Australian Manufacturing Workers Union, argued that the union is in full support of vaccination, but said the SPC refused to hold consultations and answer 32 questions put before them. “This is a public health matter, not an industrial one – it should not be left to bosses,” Murphy said.
Some employers are coming out in support of workers and making their vaccine policies more flexible. Even the Australian government maintains that receiving the vaccine should be free and voluntary. However, it still aims to have as many Australians vaccinated as possible.
Crissa suggested, “As the rollout gathers pace this can involve distributing the latest reputable information, providing assistance in making vaccination bookings, allocation of time or special vaccination leave days, or running workplace vaccination programs. By making it as easy as possible for team members to get vaccinated, organisations can accelerate the path out of lockdown, which will benefit each and every one of us.”
Employers, however, cannot just declare mandates. They have to support employees in getting immunised. In fact, the Australian Chamber of Commerce and Industry, the largest association representing businesses, also highlighted the potential of vaccination regulations to impact compensation claims.
The group alerted employers to the possible threat. Employers who offer incentives to get vaccinated could face compensation claims from workers who suffer any adverse reactions or aftereffects from inoculation.
The problem is not the mandate but the lack of communication
The lack of awareness, the volume of fragmented and often unverified information, and the communication gaps between employers and employees are causing a backlash against compulsory vaccinations. If companies take into consideration the diverse needs of their employees, allay their fears, and support them throughout the process of getting vaccinated, then they can help to alleviate their anxieties over the vaccines.
For instance, Qantas Group formulated their vaccine policy after organising a survey which was sent to 22,000 Qantas and Jetstar employees to gather their views on the COVID-19 vaccinations.
The survey received 12,000 responses and garnered a mixed response. About three-quarters of the respondents felt that it should be compulsory for all the employees to be vaccinated and it would be a huge concern for them if the colleagues in their workplace are not vaccinated. On the other hand, 7% of them are either indecisive or prefer not to comment and 4% of the respondents were reluctant or unable to take the vaccine.
Based on the responses of the survey, its frontline employees will get vaccinated against COVID-19 by 15th November 2021. While for other employees, the time period has been extended to 31st March 2022. Further, exemptions from the vaccines will be given to those with authentic medical reasons. The company is also having conversations with leaders and their people to make them understand the details of the policy and address their concerns.
“Employers need to work in partnership with their workforce to listen, understand, and act on their needs to create vaccine-related policies,” said Crissa.
In an interaction with us, ELMO Software’s Monica Watt, Chief Human Resources Officer echoed similar thoughts and highlighted the importance of listening to employees' needs. In today’s talent driven world of work, it is critical to be more flexible and inclusive.
Being transparent with employees about the factors considered when making key decisions like making jabs compulsory will help start a healthy conversation, prompting employees to consider the issue objectively, and also share how they feel about their physical safety and personal well-being. Throughout the pandemic employers have had to redesign policies for changing behaviours and environments - the vaccination stage is no different. “By engaging in constant dialogue with employees, regardless of vaccination status, employers can continually understand and address the unique and diverse needs of their workforce to ensure a safe and successful reopening for all involved,” added Crissa.
How to support employees: Recommendations from the Fair Work Ombudsman
Employers can support their employees by:
- Providing leave or paid time off for employees to get vaccinated
- Helping to ensure employees have access to reliable and up-to-date information about the effectiveness of vaccinations
- In cases where employees do not wish to be vaccinated, or don’t yet have access to vaccinations, exploring other options including alternative work arrangements
To some extent, employers may be able to require employees to be vaccinated against COVID-19, but they should exercise caution if they’re considering making the jabs compulsory in their workplace. They should first seek legal advice.
Employers can only require employees to be vaccinated where:
- A specific law (such as a state or territory public health order) requires an employee to be vaccinated (see Legislation and public health orders requiring vaccination against coronavirus)
- The requirement is permitted by an enterprise agreement, other registered agreement or employment contract (see Agreements or contracts relating to vaccinations), or
- It would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis (see Lawful and reasonable directions to get vaccinated).
The debate comes down to employers being more empathetic towards employees’ needs and being more transparent about the rationale of their vaccination policies.
Stay tuned for more updates on workplace guidelines and best practices to lead people & work amid the ongoing crisis.