Vaccine mandates, office returns, and risky measures: Key concerns for HR in 2022

There's a slew of employment law changes on the horizon for Australians

BY Louis White 26 Mar 2022

Employers face an array of issues post-pandemic – not least the issue of recalling their teams. With workers reluctant to commit full-time to the office, employers need to be prepared to ensure a comprehensive check list for employees to adhere to if they are to remain working from home, Luis Izzo, managing director, Australian Business Lawyers and Advisors, advised at HRD's recent Leaders Summit.

“From March 1 in NSW, most work can take place in pre-pandemic office settings without additional mask or vaccine requirements,” Izzo revealed.“Pre the pandemic there wasn’t an association with airborne diseases but this has now changed. You need to regulate health and safety in the workplace at far greater levels than before.

“A risk management approach is needed to take into account all of the circumstances, characteristics of the individual, features of the workplace and the nature of the work.”

Risk measures employers need to address for employees include, but are not limited to:

Workplace setup at home (needs to be safe in terms of ergonomics, wires, clear exit etc).
Physical distancing in the office (State government orders)
Good hygiene (sanitising stations throughout the office)
Personal protective equipment (where necessary)
If symptomatic employees must remain at home
Some industries/businesses/government departments have vaccination requirements.

“In reality, most businesses have carte blanche to invent any rules they want post-pandemic for employees in order to secure a safe workplace,” Izzo added. “You can also engage those rules to customers and clients if they are coming into your workplace too. The rules will only fall fell of the law if they breach one of the four Discrimination Acts.”

On a national level, there is the Age Discrimination Act 2004; Disability Discrimination Act 1992, Racial Discrimination Act 1975 and Sex Discrimination Act 1984. There are also various state discrimination acts.

Vaccine mandates

When it comes to imposing vaccine mandates, Izzo believes that most companies are pretty safe to implement such a policy.

“Subject to discrimination considerations, employers are able to mandate vaccination as a condition of employment in new employment contracts and for customers to enter sites,” he said. “When it comes to existing employees, most employment contracts will be silent on this issue. Any direction must be ‘lawful and reasonable’ in the circumstances. It all comes down to managing the risk. Employers have duty to take all steps reasonably practicable to ensure safe workplaces. Your response should be based on a robust risk assessment. Consultation with workforce re risks and ‘control measures’ is a work, health and safety requirement.”

The Fair Work Commission held that for a vaccination mandate to be lawful and reasonable it must:

be directed at ensuring the health and safety of workers of the site
have a logical and understandable basis
be reasonably proportionate response to the risk created by COVID-19
be developed having regard to the circumstances of the site
be timed having regard to the spread of COVID-19 in the local area at the relevant time
be implemented only after encouraging and facilitating vaccination for workers as much as practicable.

This outline was based on the decisions in the following two cases:

CFMMEU & Howard v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 and

CFMMEU v BHP Coal Pty Ltd & Ors [2022] FWC 81.

Returning to work

Employees can only refuse to return to the office if it is considered a serious risk to health and safety emanating from an immediate or imminent exposure to a hazard (WHS laws).

“Employees have a right to not be discriminated against for raising health and safety concerns,” Izzo said. “There are adverse action protections for raising complaints or inquiries. “The other considerations you need to factor in are whether employees are catching public transport to work and the carer’s responsibilities. Do they need to look after children at home?”

Under the Fair Work Act 2009 employees can request flexible work arrangements if they are parents of school aged children, carers, employees with disabilities, employees over 55, employees experiencing domestic violence or providing support to persons experiencing domestic violence.

Working from home

If it is feasible and all parties are agreeable regarding an employee working from home for a certain number of days of the week or even full-time, employers need to perform a risk assessment at the employee’s residence.

It should include:

At the very least, employers should ensure:

Some analysis, review and consideration of the home working environment has been conducted per employee – even if by using a checklist system
Each employee has been provided with information, instruction and training to enable them to work safely at home
Contact persons are available to ensure employees have ready access to information and help if they have concerns about their working environment
Employees are reminded (whether by policy or some other means) that the employer’s usual incident reporting procedures apply to working from home - I believe this is covered in your existing policies.

“The key question employers need to ask themselves is which location is the employee contractually bound to work?” Izzo added. “Location is an implied contract term even if the contract is silent on the matter. There is no default to home for the employee, unless of course the employee started the contract during the pandemic working from home. Under the Fair Work Act, a lot of employees are entitled to flexible working conditions.”