Life After 80: A Guide To Post-COVID Australia
The WA Government has confirmed it will have one of the broadest vaccine mandates in the country, covering an estimated million workers and building on earlier requirements for all health, hotel quarantine, aged care and port workers to be vaccinated.
The new measures identify two groups of employees and industries that will need to be vaccinated to ensure critical services can be delivered.
The first group — high risk occupations — includes healthcare workers, emergency services personnel, mine site workers and pharmacists, dentists and meat workers, among others, who now have a range of deadlines for double vaccination, all by January 1 next year.
The second group — critical occupations — with a double-vax deadline of January 31, 2022, is far broader: bakers, bar staff and butchers, teachers and school staff, vets and bus drivers, tourist operators and funeral directors.
A third group has also been identified that will also be required to be vaccinated to attend work in the event of a lockdown or similar restrictions. This includes newsagents, pet stores, journalists, roadside assistance, agricultural workers and farmers, wholesalers, bottlo’s — and politicians.
Together, an estimated 75% of WA workers are captured in the move, which meets the demands of a host of industries and employers, including the mining sector, who have been looking for government support in order to adopt similar measures.
Perhaps surprisingly, it does not yet capture some of the industries that have traditionally been the first to close when restrictions are introduced, including hairdressers and beauty salon attendants, as it is assumed they will not be allowed to leave home for work if a lockdown is imposed.
How should employers navigate this issue with employees?
As protests in Melbourne, Perth and Brisbane show, there is an undercurrent of anti-vax sentiment that can quickly spill over into anger, that no employer will want to enrage.
Even the State Government has come under fire from a limited but vocal group of employees in the health sector, and public sector workers comprise about 81 per cent of the mandated groups 1 and 2 workforces.
But the penalties for not enforcing the new rules will be significant.
If an employer does not ensure employees are either vaccinated or exempt — a relatively narrow option given exemptions must come from the Chief Health Officer —they will be in breach of their obligations, according to the FAQs accompanying the new rules.
Employers will have to keep records, including copies of the evidence of vaccination, and “ensure unvaccinated staff are not permitted to work.”
Failure to do so without a reasonable excuse is an offence punishable by a fine of up to $20,000 for individuals and $100,000 for bodies corporate.
Given the hefty penalties, employers will need to work carefully with their workforce, first to outline the rules required under these sweeping changes and secondly to help address any hesitancy among employees.
Vaccination is an emotionally charged area, and some people may simply refuse — either quitting or delaying in the hope that the mandate might pass them by. In extreme cases, we have seen fake vaccination certificates passed off by employees or even people paying others to get vaccinated in their name.
To avoid confrontation, the WA Health Department recommends employers be “proactive” and engage with employees in ways that may include:
- meetings with employees
- information sessions
- consultation forums, including union representation
- arranging access to vaccinations during work hours
- facilitating attendance at State run vaccination clinics
- ensuring access to interpreters or translated documents for culturally and linguistically diverse employees.
It’s worth noting that the rules also apply to contractors — subbies on a building site, for example — but not necessarily those doing infrequent deliveries, such as couriers.
Storing vaccination records safely and adhering to privacy legislation will be another challenge for many employers.
The Chief Health Officer has previously approved evidence in the form of an Australian Government COVID-19 vaccination certificate or an Immunisation History Statement recorded on the Australian Immunisation Register, a written confirmation issued by the Health Department of the COVID-19 vaccination.
But the security required for collection and storage is also fraught, since the certificates include a person’s Individual Health Identifier. Some privacy and security experts say there are enormous risks if companies do not carefully manage the storage of this critical piece of ID, risking big fines and even jail time for misuse.
What about businesses outside the included list?
For businesses outside those included in the broad list, there is surprisingly little official protection if they would like all their workers to be vaccinated.
At the same time, we are already seeing the first discussions about employees considering legal action against employers who fail to keep them safe from the virus at work, putting employers in an invidious position.
For most industries, there are two ideas operating in tension when it comes to the vaccination of employees.
On the one hand, employers are obliged under Australia’s Workplace Health and Safety laws to “eliminate or if not possible, minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace.”
For this reason, employers have to take multiple steps to reduce the risk of exposure and put in place control measures that are appropriate to health orders in their state. But at the same time, outside a public health order employers are generally not able to mandate employees (or customers) take a specific action such as be vaccinated.
Safe Work Australia says “employers may need to consider whether a policy of only allowing vaccinated persons access to the workplace is a reasonably practicable control measure … [which] needs to be assessed on a case -by-case basis.”
Fair Work Australia recommends employers seek their own legal advice, but confirms they can only require employees to be vaccinated where:
- a specific law (such as the WA public health order) requires an employee to be vaccinated the requirement is permitted by an enterprise agreement, other registered agreement or employment contract 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.
How should employers communicate the new rules?
The short answer is: carefully.
While the public health directive provides a good framework for these discussions, employers still need to approach this issue with caution and be clear about whether their actions are covered by the government’s requirements or if they are introduced for some other reason.
They should seek legal advice on issues of health and safety obligations, discrimination, and any issues that might arise in the awards, enterprise agreements or contracts they have with staff.
And they should think carefully about consulting widely with their employees before introducing anything that could constitute a change in employment conditions, including discussions with any relevant unions or employee groups before making a change.
Most importantly, they should be mindful of ensuring any communications are carefully framed and neither breach employee privacy nor lead to workplace discrimination.
Life After 80: A Cannings Purple White Paper
Life After 80 is a white paper with a difference. It is our chance to look at life after the 80% double-vaccinated threshold is reached, the minimum level before WA is likely to lower its hard borders.
Read it below or download it here.