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EMPLOYMENT ISSUES DURING COVID-19 LOCKDOWN

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In this webinar, Karena Nicholls and Belinda McLean discuss the employment issues arising due to the current COVID-19 lockdown measures.

Belinda McLean, HR Manager at HR Focus, shared some COVID-19 policies you should have in place if you have a business.

COVID POLICIES:

Businesses need to ensure that they have clearly defined policies relating to COVID, including:

  • A coronavirus policy should include specifics around attendance at work if showing symptoms, QR Code check-in compliance, what to do if exposed to COVID, guidelines for client interactions, hygiene guidelines, social distancing and mask-wearing.
  • COVID Safety Plan – every business needs to have one and these can be downloaded from NSW Health and are industry-specific.
  • Vaccination Policy – every business will need to consider their stance on vaccination — is it encouraged, is it required (i.e. Construction workers in certain LGAs now need the vaccine to get on-site)
  • Leave policies should also be made clear with regards to providing notice etc for taking leave.

THINGS TO CONSIDER:

  • How many of your staff are vaccinated — as a business you are permitted to ask this question. Recommend surveying your team to get real data.
  • If a staff member isn’t vaccinated — what if any restrictions do you need to consider to ensure their safety i.e. should they be customer-facing?
  • Safety in the workplace protection from COVID — make sure staff are aware of protocols, they adhere to the guidelines i.e. wearing a mask, that they don’t attend work if they are sick.

WAYS TO MANAGE COVID VACCINATIONS:

  • Consider offering staff paid time off to attend vaccinations — 1/2 day for each vaccine or 1 day off.
  • Carry out a staff survey to determine vaccination levels within your business so you can make informed decisions re: returning to work.
  • Stay up to date with the rules — they are changing weekly, sometimes daily.
  • Consult with your staff.

Karena Nicholls, Partner at Coutts Lawyers & Conveyancers, also discussed vaccination, lawful direction, and tips on how to handle COVID in an employment setting.

VACCINATION

  • Mandatory vaccination is not lawful across all industries. But employers must look at factors to consider whether they can make a lawful and reasonable direction.
  • It would appear if you get the vaccine, you will get freedom — the concept of no jab, no job! Is this a breach of constitutional rights?
  • Section 51 of the Constitution says the Federal Government has powers to quarantine at (ix) and provision of medical services at (xxiiiA). The Federal Government cannot mandate it but can enforce quarantines. Interesting!
  • Vaccination requires informed consent.
  • Look to the contract of employment — is it a lawful and reasonable direction to require a safe workplace?
  • Are there other measures you can take such as requiring non-vaccine to wear a mask and social distance, have regular testing?
  • The government has made it compulsory for aged care workers, quarantine and airport staff and some health workers to obtain the vaccine.
  • It is not mandatory and you cannot force your employee to vaccinate, but you do have obligations to provide a safe workplace. Encourage it, but don’t demand it.
  • You would have seen SPC and Google making it mandatory — if employees are dismissed, they will have grounds for unfair dismissal claims unless the employer can say it was a “lawful and reasonable direction”.
  • Note that where a person can perform the work remotely then it is unlikely you will succeed on a lawful right to terminate.

TIPS

  • Understand why an employee will not be getting vaccinated.
  • Seek to accommodate where possible and where you cannot, you need to look to see whether you should terminate employment.
  • If a person cannot perform the inherent requirement of the role and you have tried to accommodate or cannot accommodate, you have grounds to terminate.
  • You must, however, try and accommodate, in my view. For example:
    • You could request employees to take a regular testing
    • Undertake a medical assessment is a lawful and reasonable direction.