Is it feasible, or even possible, for an Australian business to insist on a No Jab – No Job policy in their workplaces?
Qantas recently became the second major Aussie business to announce that they were implementing a policy for all frontline workers must be fully vaccinated by the middle of November 2021, to maintain their employment with the airline. The remainder of their employees will have until March 2022 to achieve the same goal.
This follows on from a similar announcement from Victorian company SPC and the Brisbane-based Alliance Airlines.
In the second week of August, the Fair Work Ombudsman released fresh guidelines in an attempt to set out a clear idea of which employers from which industries would be most likely to be able to go down this path. In brief, these were split into four Tiers;
Tier 1: Employees who, as part of their duties, interact with people with an increased risk of being infected with the Coronavirus (Example: Hotel Quarantine or Customs or Border Patrol Personnel)
Tier 2: Where Employees will have close contact with people that are highly vulnerable to health impacts of Coronavirus (Example: Employees working in the Aged Care or Health Care Industry)
Tier 3: Where the interaction is between employees and other people, such as customers. (Example: retail stores, especially those providing essential services)
Tier 4: Where employees have minimal contact with people outside their work environment in their day-to-day activities and may even work from home.
In the view of the FWO, people in Tier 4 are unlikely to be in a workplace that will require mandatory vaccination and Tier 3 is a little more complicated and will depend upon the frequency of community transmission of Covid and whether or not the business in question needs to remain open in the event of a lockdown.
The fact is of course that this is only a recommendation at this point, and it would be much better for the economy if the Federal Government would take a lead on this instead of leaving it to the various State legislators who have varied interpretations on the situations.
Fair work advises that employers, using the Tier system for guidance, should make their decisions based on a case-by-case basis. But they must also consider whether there are other outside circumstances that may be preventing employees from being vaccinated including religious convictions or medical issues.
In addition, if employers at all levels introduce a policy on this to their workplaces, they need to be extremely careful not to tread into the mire of anti-discrimination legislation (age, gender, and ethnic origin) as well as disability, which can include such things as mental illness as well as medical concerns.
In addition, dismissing an employee for failing to get vaccinated can further complicate the issue when a case for wrongful dismissal suddenly appears on the boss’s desk.
The overarching word here, therefore, becomes consultation. Make sure there are avenues for staff to be part of the development of the policy about vaccinations and then maybe head off this sort of problem before it becomes expensive to deal with. If both parties can show a willingness to find a solution in an honest, open discussion, this has to be a good thing.