24 September 2021

Many of you may be watching the debate taking place about employers imposing mandatory COVID vaccinations on their staff and the multitude of opinions as to whether it’s the right thing to do and in fact, if it’s even legal.  

We thought it might be helpful to build a framework to help you to navigate through this next difficult phase.

The starting point is to ask yourself, why you might consider a vaccination policy for your practice in the first place. What would be the purpose of such a policy?

If your entire team has agreed to get vaccinated or is in the process of doing so, there may be no need for you to have a policy at all.

If this is not the case and you have team members who have concerns about being vaccinated, it may be worth considering some of the following factors before determining the right course for you and your team:

  • Your obligation to provide a safe workplace: First and foremost, your obligation under Fair Work (State legislation) to provide a safe workplace for your team. The question as to whether there is any more risk to the team of working alongside an unvaccinated colleague (compared to a vaccinated one) is one that you’ll have to form your own view on.  With a plethora of conflicting information, it may be that as the employer, you carry the risk, so you have the final say as to which evidence you choose in support of your final determination.
  • Other legal obligations:  New or existing laws which might prohibit you from granting access to unvaccinated members of the public (continued or new kerb side patient admissions and discharges), assuming that you can even tell who is vaccinated and who isn’t – and it may follow that this could include workers.  In other words, you may have no choice.

  • Business Risk: Any increased risk of forced closure of the practice due to a ‘close contact’ if it is determined that unvaccinated team members are to be treated differently to vaccinated team members in terms of their requirement to self-isolate – and what might be the impact on your business, as an essential service.

  • Emotional stability of the team: The emotional impact on a team member who has personal concerns about the impact of the vaccination on their health or the potential impact on already exhausted team members being told to work alongside an unvaccinated team member – whether that be a concern for their own health or that they may be responsible for passing COVID more easily onto a colleague that isn’t vaccinated.

  • National Interest: Or you might just be wondering if this is in the Nation’s best interests to enable it to open back up as soon as possible or see mandatory vaccination as a slippery slope for individual freedom.

Whatever the factors that you’re currently grappling with, this has the potential to break up perfectly good working relationships unless it is handled with care.

Let me go back to my opening comments – why might you need to have a policy in the first place?

To find out, Qantas surveyed 22,000 people and received 12,000 responses.  A survey of this nature would probably not suit most veterinary practice teams due to their relatively small size, however it proved to be an important form of consultation for Qantas. Notwithstanding that some Qantas employees were against any form of mandatory vaccination, enough of the population was supportive and this feedback provided a roadmap to take to employees, unions and health and safety representatives.  At this stage, all of Qantas’ workforce will be required to be vaccinated by March 2022. 

One of Australia’s leading law firms (Gilbert and Tobin) has announced a ‘no vaccination, no office’ policy (which seems to be saying ‘we don’t want to make you get vaccinated, but if you don’t, you’ll have to work from home’ – it would seem that’s possible for lawyers) and the Federal Government stood down 4% of the aged care workforce on the 17th September who had failed to meet the vaccination deadline (they can’t work from home).

No matter how many employees you have, the consultation process is an important one to ensure that any decisions you make are considerate of everyone’s views. 

Not that you have to agree with everyone’s opinion, but it’s important that you listen to understand their position, before making the final call.

The landscape is changing very quickly and with approximately 10% of reported cases in the latest NSW lockdown entering ICU (Sydney, Sep 2021) and up to 11 nurses to ‘prone’ a patient every 4 hours (Royal North Shore Hospital, Sydney September 2021), the impact on the health system when NSW ‘opens up’ with 70% fully vaccinated is really hard to predict.  The other states will undoubtedly follow with V2.0 with the benefit of having seen the outcome in NSW.

Fair Work Australia is justifiably vague around whether an employer can require an employee to be vaccinated, relying on the “Lawful and Reasonable” tests. The short answer seems to be that it is Lawful (I’m relying here somewhat on the combined legal minds of Qantas, Virgin, Telstra, SPC and the NSW and Qld Police (the list keeps growing), all of whom have or are in the process of mandating vaccinations for all of their staff), however for it to be Reasonable, at the time of writing this, there doesn’t appear to be anything definitive for Veterinary practices.  The industry’s status as an essential service (like the aged care sector) must give us pause for thought and so you’d be well advised to get your own legal advice on whether factors in your practice would pass a Reasonableness test – if you are considering a mandatory vaccination policy.

As mentioned, Qantas is now ‘working through the detail”. This will likely include the criteria for exemptions to any mandatory vaccination policy.  I sincerely hope that these exemptions are dealt with in a sensitive way such that people who have a real concern for their own wellbeing (and therefore choose not to be vaccinated) are able to work flexibly and not made to feel like second class citizens.

It is such a complex and potentially divisive subject that you may elect to simply leave it alone. However, given that most of the States are now focussing on vaccination rates (including the talk about ‘vaccination passports’), you can be sure that individual team member’s views on vaccination will move from being the ‘elephant in the room’ to a hot topic of debate.

Where to from here?

We invite you to start a consultative and non-judgemental discussion with your teams now so that if some of the issues raised in this note point to it being “Reasonable” for you to require vaccination you will have paid them the courtesy of having had time to work through their concerns.

Because of the potential for this to become personal and team members to quickly become defensive, we recommend that this discussion take place one-on-one with each of your team.  This will avoid team members feeling marginalised and digging their heals in even deeper. 

Stay out of judgement and remain curious.

If you have strongly held views (either way), be accountable and maybe it isn’t you that has this discussion with the team.

Use the factors highlighted in this paper (and any others) to start the conversation with each team member and try to get closure in each case (agree to get vaccinated or not and if so, by what date).

If a team member doesn’t feel comfortable disclosing their vaccination status, as an employer or manager, you’d have to assume that they aren’t vaccinated and don’t intend to.

Most importantly, never lose sight of why you’re doing this.  If this is about protecting the welfare of your team (both legally and morally) and you haven’t protected the wellbeing of some of your team who just ‘need more time’ to consider the factors after your one-on-one conversation, then maybe you’ve lost sight of why you’re having the discussion in the first place.

A good example here is a pregnant team member, particularly one that has received advice from their GP not to risk vaccination. By giving this team member more time to reflect on some of the risks, more information from Government Health and suggesting that they take this information back to their GP for a further discussion – including trying to find ways that this person may be able to reduce their exposure in the practice – if you can’t find a satisfactorily safe solution for them along with the rest of the team, you will have tried.

Finally, remain flexible and don’t be afraid to ‘re-think’ your position as the landscape continues to evolve. 

From the desk of Lincoln’s Founder, Paul Ainsworth BSc MBA Exec

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