As the recovery phase of the pandemic rolls out, there are countless questions and considerations for workers, employers and customers over vaccines and the workplace. Safe Work Australia (SWA), as a national policy agency, became the focus point for guidance on COVID-19 and vaccinations in the workplace. Company Director recently spoke to SWA Chair Diane Smith-Gander AO FAICD about how directors and business owners can fulfil their obligations.
Company Director (CD): Have there been any issues for business owners and directors of companies when providing vaccinations in the workplace for employees?
Diane Smith-Gander (DSG): There are currently very few examples of workers’ compensation cases, but there are certainly workers’ compensation cases for people who have contracted COVID-19 at work or have had adverse reactions to COVID-19 vaccines. These cases are starting to come through to workers’ compensation. Businesses are alert to these possibilities and are providing additional leave for their workers to get vaccinated or to those who have a bad reaction to the vaccinations. Some are allowing vaccinations at the workplace. Businesses know that these issues are there. How they are best managed over time will play out as we get more experience. This is an uncomfortable time because we are trying to make these very important decisions in the absence of full information, but that’s the definition of judgement.
CD: What are the issues around mandatory vaccinations that boards should consider?
DSG: Clearly, not everyone is going to be able to work from home if they are not prepared or unable to get vaccinated. The vast majority of workers are indicating that they are prepared to have a vaccine and their biggest concern is having unvaccinated people with them. There will very little sympathy for co-workers who don’t have a very good reason for not being vaccinated. This could cause relationship problems in the workplace. That’s a big issue that must be navigated very carefully by employers.
There may also be questions are around if people lose their employment because they are not prepared to have the vaccine or where, perhaps, the employer doesn’t get the discrimination and privacy settings right. There are cases where vaccines have been mandated, but workers have decided not to have them and have left their industry. This has prompted some turnover and with that comes the need to recruit new people and induct and train them. That comes with additional costs.
Also, if you are mandating that your workers have the vaccine, they will probably want you to think very carefully about other people coming into the business, such as suppliers and customers. One of the best protections around the workers' compensation scheme is to ensure that absolutely everyone who enters your workplace uses a contact tracing app because it will give you an iron-clad record of who has been in your business. It will also enable you to demonstrate to your workers' compensation insurer that an employee contracted COVID-19 at work.
Public health orders are by far the best recognition that mandatory vaccinations are an appropriate response to your industry’s context. Directors have been very expansive in advocating with governments about what they think about those public health orders. But you can’t sit around and wait for a public health order. You have to do your diligence to understand the hazards in your workplace and what the appropriate response is.
CD: What are the other issues to consider around mandatory vaccinations?
DSG: In some cases, I have heard that when organisations mandate vaccinations for their staff, very quickly customers and suppliers start asking: “What about me? Can I come to your premises?”
As soon as vaccinations are made a clear requirement for workers, it drops the stone in the pond and the ripples go out to other people who may come to the workplace. Many organisations already have “check-in, check-out” systems that allow them to record who comes to their premises, but if you’re not doing that, contact-tracing apps are one potential answer.
Having the information in one trusted place would be extremely important. I’m hoping our state governments will respond so that every business doesn’t have to set up its own system. The states’ contact-tracing apps seem to be trusted.
CD: How can directors make judgements in the current climate?
DSG: The best thing you can do is to use the resources that are available from SWA on its website. There’s also guidance on the websites of the Fair Work Ombudsman, the Department of Health and organisations such as the Australian Chamber of Commerce and Industry, the Australian Industry Group and the Business Council of Australia. Ensure you’re using those resources and not listening to social media too much.
CD: Are there areas of potential liability for directors around mandating vaccinations or providing them in the workplace?
DSG: We know that requiring workers to do particular things needs to be done in a way that doesn’t discriminate, respects privacy and is reasonable in terms of the hazard in the workplace. That duty hasn’t changed at all. The liability for requiring your workers to do something that is later proved to be unreasonable is no different. What’s different here is the very early stage of our understanding of how good the controls are.
CD: What issues do you foresee as workers start coming back into the workplace after lockdown?
DSG: The way we need to interact with each other in the workplace is very different now. We have different approaches to cleaning and our own personal hygiene. We will be wearing masks and physical distancing.
A lot of open-plan offices will have to open with every second desk empty and there’s the obvious question of how many people can be in a lift at any one time. All the worker traffic and operating methods that buildings were designed for are now out the window, particularly for ventilation. Some ventilation standards are now not fit for purpose.
There are costs to moving to a COVID-19 operating environment that no organisation is going to be able to avoid. Directors need to be thinking very carefully about how they manage these costs.
CD: What mental health concerns are there around people going back to workplaces they are no longer used to?
DSG: Whenever there is change, there is always going to be some sort of issue. I have seen several surveys of workers and talked to some companies about them. They suggest that the biggest issue in workers’ minds is whether they are going to be in the workplace with colleagues who are not fully vaccinated. That’s very understandable.
Employers need to be very clear with their workers about the steps they are taking around this. This is where the consultation process is so important because it will give people confidence that the employer has been taking all the appropriate steps. This also provides an opportunity for the workers to talk about things they are concerned about which, perhaps, the employer hasn’t considered.
CD: Could there be issues if organisations or different states don’t open at the same time?
DSG: It is very difficult for businesses if they have different operating routines across different states or different local government areas (LGAs). This pandemic doesn’t respect borders and LGAs. We will find businesses are just going to have to operate across different methods at different times. They're going to change very quickly.
Good communications to employees, customers, suppliers and stakeholders is going to be really necessary. People are going to have to be much more patient in trying to navigate what is going to be a much more complex business system for a number of years. It’s not just about reopening, it’s whether there are outbreaks. For example, if you are a supermarket operator, you may have some areas where there are infections going on and other areas where there are none. You’ll have to think about how you keep your workforce employed and respond differently.
CD: Would you describe the different approaches taken to deal with COVID-19 between an ASX 200 company, a not-for-profit and a small business?
DSG: Directors are directors. It doesn’t matter how big or little your company is. You have to provide a safe workplace. Assessing risks and determining if it’s reasonably practicable to require your workers to be vaccinated is the same everywhere. If you felt you had a carve-out of some description, why would you not want to get this right? This is the sort of thing where it is obvious what you need to do to keep your workers safe and you need to get on with that.
CD: What are the issues that SWA faced during the pandemic?
DSG: SWA is a policy agency, but it has always had a very strong social media presence and a very good website. It was very important for people to get good guidance when COVID-19 began and they clearly saw SWA as the national body to go to. This has shown us just how important national consistency related to work, health and safety (WHS) is. SWA became the centre hub of WHS guidance on COVID-19 and vaccines. That meant that SWA had to work on a much quicker review cycle to be talking to allied organisations such as state regulators like Safe Work Victoria, the Fair Work Ombudsman and so forth, to ensure what was on its website was being linked appropriately to the other sources of information. Then, the volume of traffic on the website needed to be managed and so SWA needed to restructure its priorities and respond quickly to COVID-19.