The recent spread of the Delta variant has caused a spike in people being vaccinated – but what does this mean for how you manage your workplace? In today’s bulletin, we answer some current questions.

The starting position

As with any other foreseeable risk of injury in your workplace, you have a duty to eliminate, or if not possible, minimise, so far as reasonably practicable, the risk of exposure to COVID-19 in the workplace. You are not required to take every possible step, but you must do all that is reasonably practicable to minimise this risk. Vaccination of workers, and a requirement for customers and visitors to be vaccinated, may be one available step among a range of other steps (e.g. hygiene, social distancing and personal protective equipment.

What does vaccination do?

The current message from the medical profession is that a person who is fully vaccinated will be less likely to suffer severe impacts from COVID-19. However, it is less clear that vaccination will prevent or reduce transmission of the virus. So, at this stage, when considering what steps you will take regarding vaccination as a control, you must bear in mind that it will not necessarily remove all risk of transmission of the virus.

Am I entitled to ask visitors to my workplace to demonstrate that they have been vaccinated?

A restriction on customers, suppliers and visitors to only those who have been vaccinated may well reduce the risk of COVID-19 being transmitted to the workplace, but the implementation may be difficult to enforce. Businesses may also face potential claims of discrimination or breach of privacy depending on how the policy is enforced. On the other hand, it may be that your organisation can seek the cooperation of its suppliers, customers and visitors in implementing such approach.

Am I entitled to require my workers to get vaccinated?

Under the common law, you can issue a lawful and reasonable direction to a worker who must carry out or observe that direction. A ‘lawful’ direction is one that does not contravene a state, territory or Commonwealth law. Whether or not a direction is ‘reasonable’ depends on the circumstances of the case.

In some cases, the government has mandated the workforce be vaccinated and so the employer’s direction to do so will be lawful and reasonable, subject to any particular health issues faced by the individual. For other industries, the current medical advice has not mandated vaccination and so your business will need to undertake risk assessment to determine whether directing workers be vaccinated is reasonable for your business.

Factors relevant to that assessment will include:

• the extent to which your workers may be exposed to the risk of infection as part of their work (this may be affected by the likely direct contact they will have with infected people and/or the proximity workers have to each other);
• the extent to which your workers provide services to people with vulnerable health conditions; and
• the effectiveness of other control measures in the workplace. In terms of the more contagious Delta variant, this may require close examination.

Separate to the risk assessment, you would also need advice on whether the policy would be unlawful for any reasons, including discrimination.

Will I be sued if I don’t get all workers vaccinated and then someone contracts COVID-19 at my workplace?

This is quite unlikely in circumstances where vaccination may not necessarily remove all risk of transmission of the virus. Having said that, it is possible that a worker who can demonstrate that they contracted COVID-19 at your workplace may be entitled to claim workers’ compensation.

What if a worker refuses to attend work because of other unvaccinated workers?

Assuming you do not have a policy mandating vaccination, are you entitled to direct a worker to come to the workplace if they raise concerns about unvaccinated workers? The answer to this will depend on the risk assessment you have undertaken regarding the potential risk of workers contracting COVID-19 at your workplace. It will also need to take into account the fact that vaccination may not necessarily remove all risk of transmission of the virus. In most circumstances, it will not be reasonable for a worker to refuse to come to work where there are unvaccinated workers.

Should I get all workers tested for COVID-19 every week, irrespective of whether they have symptoms?

Unless the workers are subject to a public health order requiring them to be regularly tested, then it is not lawful to direct all workers to get tested. However, depending on the risk profile of your business you may try seeking agreement from all workers to undertake regular testing to ensure the safety of all workers and their families, if they are attending the workplace.