This article has been put together to assist NSW businesses and workers who are dealing with confusion around their return to the workplace on 11 October 2021. Please read this article in conjunction with our previous blog.
Whilst there is so much information on what businesses and worker’s need to do and it is changing every day, the NSW Government have updated their plan for a Roadmap for easing Covid 19 Restrictions. It has been communicated that we will reach 70% vaccinations in NSW as at the 11 October 2021 where businesses other than essential services will begin to open.
This article discusses information for businesses who don’t clearly operate in industries affected by public health orders and for employers who’s employee’s cannot work from home.
I am expecting to resume my business on the 11 October 2021 and my employees are not fully vaccinated. What do I do in this instance?
The NSW Government has not made it clear when situations arise for employers and workers particularly if you are not in industry affected by the Public Health orders. Some of the following scenarios may apply to you:
Employees haven’t been able to obtain a vaccination, or they have had one vaccine only.
They do not want to have the vaccination for personal reasons
They have a medical reason why they cannot be vaccinated.
Can employers mandate COVID-19 vaccinations?
Generally, no if you are not in an Industry that has been identified as an Industry affected by Public Health Orders such as Aged Care and working with people with disabilities for example then there is no obligation for all workers to be vaccinated.
Can I reasonably find out my employee’s vaccination status?
You can only ask for information which is reasonably necessary or directly related to, one or more of your organisation’s functions or activities (generally businesses who have a vaccination policy which is carefully designed for your workplace it would be a lawful and reasonable to encourage your workers to obtain a vaccine and be able to enquire as to whether they have been vaccinated);
If you have workers who are working directly with the public you will need to do a risk assessment based on guidelines set out below in this article and implement a policy which is accompanied and observing Privacy legislation.
What factors about my workplace do I need to consider to ensure that my workplace is safe?
the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service)
the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community
the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant.
work health and safety obligations,
each employee’s circumstances, including their duties and the risks associated with their work
whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
The following can help as a general guide to assess your workers and workplace in 4 broad criteria:
Tier 1 work – where employees are required as part of their duties to interact with people with an increased risk of being infected (for example, workers working in hotel quarantine and border workers).
Tier 2 work – where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, workers in health care and aged care). The CIVID-19 vaccination is mandatory for all residential aged care works from 17 September 2021
Tier 3 work – where employees are likely to interact with other people such as customers or other employees in the normal course of their employment (for example, employees in a store providing essential goods eg retail staff and authorised workers.
Tier 4 work – where employees have minimal face-to-face interactions as part of their normal employment duties (for example, employees working from home).
There is a possibility that you may have workers in different tiers working for you within your workplace which means that you will need to assess each worker in line with these guidelines and communicate what each worker needs to know in terms of obligations.
Consultation is key You need to check your consultation obligations under any Award or Agreement that apply to your workplace this will guide you as to how to undertake and consult with your workers about the requirement for a vaccination.
Communication is key. Update your employees regularly on the risks of the Corona Virus as often as you need to this is changing day to day depending on the area your workplace is in this is generally being communicated through the NSW Government website.
Is there any way I can ask my workers to be vaccinated if my workers do not fall into the clearly into Level 1 or 2 ?
Some steps you can take to encourage employees to get vaccinated include:
Encourage all employees to speak to their doctor about getting the vaccine or to answer any questions they have, as medical professionals will be best suited to advise people about their personal health and any potential risks.
Ask your employees if they can provide you with proof of vaccination, so you can keep a record of which employees have been vaccinated.
If an employee advises that they are choosing not to get vaccinated or they have an exemption, provide them with information and expectations around reducing the risk of spreading COVID-19 in the workplace. For example, instructions on social distancing, wearing a mask, or not coming to work if they have flu-like symptoms.
I have workers who have advised they are not vaccinated, and I am opening 11 October 2021 what do I do?
If you are able to obtain vaccination information from you workers, the information seems to be saying that you should either allow people who are unvaccinated to work from home or if this is not possible allow them to do other duties that are not in direct contact with other workers or clients.
It may be the case that they cannot return to work according to the Road map set down by the NSW Government until the 1 December 2021.
Please check Alternative work arrangements - Fair Work Ombudsman.
Can I stand down an employee who cannot reasonably return to work until 1 December 2021?
Before standing down an employee, employers should consider all other options. A check list which includes assessing reasonable alternative duties or other leave options needs to be undertaken.
Once you have undertaken this you can reasonably stand down the worker.
A note on Discrimination and COVID-19 Vaccinations
Employers will also need to consider their duty to provide ‘reasonable adjustments’ for any employee with a disability who is unable to comply with a vaccination requirement, if that is a requirement of their role. This could include workers who have been provided with Medical exemptions for having the Vaccine. Depending on the circumstances, an employer will need to make reasonable adjustments for an employee who is unable to be vaccinated because of a disability, unless to do so would impose ‘unjustifiable hardship’ on the employer.
Can an employee refuse to attend work because another employee is not vaccinated?
Generally, no both the employee and the employer has obligations under Safe Work legislation. The employer should make it clear that if the worker is unwell then they should not attend work so as to place others at risk.
Reassure your workers that you will ask any workers to get tested immediately if they are displaying symptoms and they have been in the workplace. Communicate information with workers in line with your obligations Latest Contact Risk Assessment from the NSW Government.
Where the workplace is following general social distancing, hygiene and general safety and has a Covid Safety Plan the employer will be able to direct an employee to attend the workplace.
What to do if I need help?
Have any additional questions or require some guidance? We have developed a Covid Vaccination Implementation Plan which will assist in each scenario. Please contact us to discuss where to next or email firstname.lastname@example.org .