How to handle unvaccinated workers

The return of unvaccinated workers to the workplace raises thorny questions for employers.

Do they pose a risk to others? How to know who’s vaccinated and who isn’t? What to do if vaccinated workers don’t want to mix with those who haven’t had the jab?

With any luck, all or most of your staff will have had at least one shot of COVID-19 vaccine by the time they return to your workplace when the lockdowns end. But if you have the misfortune to number fervent anti-vaxxers among your workforce, you’ll have to assess the risks this might create for vaccinated workers, customers, and visitors to the workplace. Remember too, that some people may have genuine medical reasons why they cannot be vaccinated.

What are the risks?

It’s clear that vaccinated people are less likely to become seriously ill or be hospitalised or die if they contract the virus, but there’s not yet enough evidence of the extent to which the vaccines protect them from being infected.

So, it’s possible that vaccinated workers may contract the virus from the unvaccinated ones who are infected but don’t realise it because they have few or no symptoms. 

Conversely, unvaccinated workers may be infected by vaccinated workers, customers, or others who are symptom-free but are carrying the virus without realising it. The unvaccinated workers could then become seriously ill, or even die.

As a result, either vaccinated or unvaccinated workers could unknowingly infect their family, friends, and others in their community.

This means there may be a serious risk of severe health consequences for someone, either a worker or someone they have contact with. 

Remember that some people are at greater risk of more serious illness with COVID-19:  

  • Aboriginal and Torres Strait Islander people 50 years and older with one or more chronic medical conditions 
  • people 65 years and older with one or more chronic medical conditions 
  • people 70 years and older, and 
  • people with compromised immune systems.

Work health and safety (WHS) laws oblige employers to eliminate or minimise any health risks to workers and others affected by the work, so you need to assess the risks at your own workplace and decide on the best way to manage it.

How do you know who’s vaccinated and who isn’t?

The first practical question for employers is whether you’re entitled to ask staff if they’re vaccinated. This could raise issues in relation to privacy or discrimination. 

The Office of the Australian Information Commissioner has advice on National COVID-19 Privacy Principles and guidance for employers on Understanding your privacy obligations to staff.

A person’s vaccination status is considered ‘sensitive information’ under privacy laws, so it’s afforded a higher level of protection than other kinds of information. Before asking, you need to assess whether it’s lawful and reasonable to ask an employee to disclose their vaccination status, in view of whether you need to know, in order to implement any COVID-19 control measures.

This assessment will depend partly on the type of work the person does. For example, does their work require them to be in close physical proximity to others, or to be in close contact with vulnerable people in the course of their work? If so, it’s possible that your duty under WHS laws may make it lawful and reasonable to ask about their vaccination status.

You shouldn’t collect vaccination status information from an employee unless the employee consents and the collection is reasonably necessary for your business functions and activities.

Technical fixes currently in the pipeline could mean that when a person scans the business’s QR code, their vaccination status will also be recorded. Meanwhile, proof of vaccination status could consist of a COVID-19 digital certificate or a person’s immunisation history statement.

Will the vaccinated be willing to work with unvaccinated? 

Safe Work Australia advises that under WHS laws, a worker can only cease or refuse to carry out work if they have a reasonable concern that it would entail a serious health or safety risk from immediate or imminent exposure to a hazard. This means a worker won’t generally be able to rely on WHS laws to refuse to work with an unvaccinated worker, but it will depend on the circumstances.

It’s important to talk with your workers to understand their concerns – and for them to understand your concerns – and to assure them you’ll continue to implement all other control measures known to reduce the spread of the virus, such as physical distancing, good hygiene and increased cleaning. These measures must remain in place, even if your workers are vaccinated.

Should the unvaccinated be separated from vaccinated?

Keep in mind that some individuals may have genuine medical reasons why they shouldn’t be vaccinated. Depending on the nature of the work and the workplace, it may be possible to allay concerns and alleviate risks through one or more measures such as having people continue to work from home, changing allocation of individuals to different shifts or rosters, making temporary adjustments to some people’s duties or physically separating some workers from others, to minimise exposure.

For more information on resolving workplace issues relating to COVID-19 vaccinations, visit Fair Work Ombudsman

The guidance provided is general in nature. The guidance has been prepared without taking into account your specific objectives, financial situation or needs. Before acting on any guidance you should consider the appropriateness of the guidance having regard to your objectives, financial situation and needs. Before making any decisions, it is important for you to consider these matters and to seek appropriate legal, health or other professional advice.

Source: Australian Business Lawyers