Snapshot
- Transitioning back to the office requires caution and planning.
- The Fair Work Ombudsman has provided guidance for employers considering mandatory vaccination. Each employer should consider its operations and workplace risks to decide on the best approach.
- It is important that someone within each law practice is designated the responsibility of staying across changes to government directives and keeping staff updated.
After lengthy lockdowns, increasing rates of vaccination and the NSW government roadmap for reopening have put us in a position to consider returning to the office. The transition back to the office requires caution, planning and compliance.
Mandatory vaccination policies
Under the NSW government roadmap for reopening, restrictions are lifting for vaccinated people. Those who are not vaccinated are required to continue working from home if reasonably practical, even after NSW hits the 80 per ent vaccination rate (at the date of writing). In this context, many employers are grappling with the question of whether to mandate vaccination for employees. Exposure to workers compensation claims by employees that contract COVID-19 in the course of their employment is incentivising some firms to consider a vaccine mandate.
The Fair Work Ombudsman has given high-level guidance for employers considering mandatory vaccination. Each employer will need to consider its own operations and workplace risks to decide on the best approach to vaccination.
In two recent unfair dismissal applications, brought by employees who were dismissed for refusing to comply with mandatory flu vaccination policies, the Fair Work Commission ruled that directions for compliance with mandatory vaccination policies were lawful and reasonable, and the employees’ failure to comply were valid reasons for dismissal (Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156; Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015). In both cases, the employees unsuccessfully sought medical exemptions.
Drawing from these recent judgments, law firms considering a mandatory vaccination policy will need to facilitate exemption requests, particularly if there are medical reasons supported by evidence. A mandatory vaccination policy should also address the requirements of the Privacy Act 1988 (Cth), where applicable.
