Vaccination Advice Calls Explode As Employers Seek Help On Obligations And Legal Implications

Vaccination-related calls to Employsure’s advice line for business owners spiked by 297% in September and continue to rise in October, as employers scramble to understand their obligations when it comes to the COVID-19 vaccine and their staff.

Employsure advisers took more calls on workplace vaccinations in September than all previous months on record combined. The main questions employers keep asking: Will the vaccine be made mandatory for them, how will they be able to enforce it, and will enforcing it result in legal trouble?

While some larger companies have publicly come out and made the jab mandatory, the rules for smaller employers, particularly those without a government vaccine mandate for their business or industry, remains murky.

“Employers are rightfully worried, particularly smaller businesses that don’t have a dedicated HR department. The number one question employers are asking is whether they can direct employees to get the COVID-19 vaccine or not, and whether or not such a direction can result in any legal trouble down the line,” said Employsure employment relations specialist Maddie McKenzie.

“The ability to direct an employee to get vaccinated is situational and requires a case-by-case assessment of all factors concerning the workplace, the specific employee and the nature of the work performed. There are many important considerations when determining if a direction to vaccinate is ‘reasonable’ such as the location of the business, the prevalence of community transmission of COVID-19, employees’ individual circumstances, the risk of infection in the workplace, the effectiveness of other control measures to mitigate the risk of infection, as well as what is set out in the relevant employment agreement.”

Worker vaccination status:

Compiling data on which employees have been vaccinated can be beneficial for the safety of a business. If an employer is unable to mandate vaccines in their workplace, they can still ask staff what their vaccination status is, and also encourage them to receive the vaccine. Employee management software like BrightHR’s Vacctrak feature allows employers to monitor who is fully, partially, or not vaccinated against COVID-19 in the workplace.

Generally, workers do not have to tell their employer if they have been vaccinated, or even give a reason behind it. To keep on the safe side, employers should assume a worker is unvaccinated if they do not disclose this information, and inform that worker of their assumption.

Concerned staff:

Employers have also expressed concern on behalf of employees who refuse to work with an unvaccinated colleague. How to handle these situations may depend on the industry and type of work being performed. If there are reasonable processes and procedures put in place by the employer to allow the unvaccinated employee to not expose others to risk, then refusing to work with them may not be acceptable.

An employer should consider whether there are specific control measures that could be put in place, such as masks and other protective equipment, social distancing, testing and special hygiene processes, to ensure all staff feel safe in the workplace.

Required COVID testing?

Requesting staff get a COVID test is also on the radar of employers. Employers have a duty of care by law, and as such must do everything reasonably practicable to reduce the risk to health and safety in the workplace.

“If an employee has come to work or has been off sick with symptoms consistent with COVID-19, then obtaining a medical clearance, by way of a negative test result for the disease is entirely reasonable. One might say it is an important element of ensuring a safe work place for other employees and customers,” continued Ms McKenzie.

“In certain situations, an employer could justifiably require a negative test result prior to allowing the employee to return to work for the safety of other employees and customers, and also to ensure the employee is fit to return to work. If an employee were to refuse to undertake a test in such a circumstance, it would be important to consult with the employee and understand the reason for refusal before taking any further action.”
 

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