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by editor arbor age

National Vaccine roll out: employment ramifications.

The long awaited Covid-19 Vaccine rollout has commenced. At the time of writing, thousands of quarantine, border and healthcare workers received their first dose.

Further frontline workers aged care facilities will also be a priority in this early stage. In the near future, the opportunity to access the vaccination will be available to persons in all manner of Australian workplaces.

What are the implications for workplaces and how should this be handled by individual businesses?
The starting point is current legislative framework and the overarching requirement for employers under the Model Work Health and Safety (WHS) to eliminate, or if that is not reasonably practical, minimise the risk of exposure to COVID-19 in the workplace.

For an employer to meet their obligations under the model WHS legislation and minimise the risk of exposure to COVID-19 in the workplace, an employer must continue to apply reasonably practical COVID-19 control measures including physical distancing, good hygiene and regular cleaning and maintenance. That includes ensuring workers do not attend work if they are unwell.

It is also important that workplaces comply with any public health orders regularly made by state and territory governments.

Vaccination and an Employer’s Workplace Health and Safety duties
It should be noted that there are currently no laws or public health orders in Australia that specifically empower employers to require their employees to be vaccinated against COVID-19.

However, state and territory health agencies may make public orders that stipulate some workers require vaccination in high risk workplaces. Business in the timber products industry need to be conscious to stay up to date with advice from your respective health agency and check with TTIA.

It is too early at present to ascertain if the COVID-19 Vaccines will stop a vaccinated person from being infected with the virus. Consequently, the vaccinated person may unwittingly carry and spread the virus to others around them. As a result, Safe Work Australia maintain that an employer must continue to apply all reasonably practicable control measures.

Do I need to include mandatory vaccination as a control measure to comply with my WHS duties?
It is unlikely that a requirement to be vaccinated will be reasonably practicable.

This is because, for example:
• at present, public health experts, such as the Australian Health Protection Principal Committee have not recommended a vaccine be made mandatory in many industries;
• there may not yet be a vaccine available for your workers;
• your workplace is ‘low risk’, e.g., your business is in a town with no community transmission or no customer facing roles; or
• some of your workers have medical reasons why they cannot be vaccinated.

However, ultimately whether you should depend on the particular circumstances at the time you are undertaking your risk assessment.

Can my workers refuse to come to work because another worker isn’t vaccinated?
Under WHS laws, a worker can only cease or refuse to carry out work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety from an immediate or imminent exposure to a hazard. In most circumstances, a worker will not be able to rely on the WHS laws to cease work simply because another worker at the workplace isn’t vaccinated, however this will depend on the circumstances.

There is currently insufficient evidence about the impact of COVID-19 vaccines on the transmission of COVID-19. Therefore, there is no reason why workers who are currently attending workplaces with other people should stop doing so because of the vaccine rollout. For vulnerable workers, you should continue to implement other working arrangements where you reasonably can, such as working from home.

You should also talk to your workers to understand their concerns and assure them that you are continuing to implement all other control measures which are known to reduce require your workers to be vaccinated will the spread of the virus in the workplace, such as physical distancing, good hygiene and increased cleaning. These measures must remain in place, even if your workers are vaccinated.

Will I be held liable under WHS laws if I don’t make my workers get vaccinated and one of them gets COVID-19?
There is currently insufficient evidenceabout the impact of COVID-19 vaccines on transmission of the virus which means that a worker could get COVID-19 even if they are vaccinated. It is therefore unlikely that you have breached model WHS laws simply because you don’t require your workers to get vaccinated.

A safe and effective COVID-19 vaccination is one part of keeping the Australian community safe and you can encourage your workers to get vaccinated, if they can. As mentioned earlier, you must continue to implement all reasonably practicable control measures in your workplace, such as such as physical distancing, good hygiene and increased cleaning and maintenance. Your workers should not come to work if they are unwell – even if they are vaccinated.

What about my obligations under Workers’ Compensation Laws?
Under workers’ compensation laws, workers may be entitled to workers’ compensation if they contract COVID-19 while at work, regardless of how they contracted it. Workers’ compensation laws differ in each state and territory, so you should seek advice from your workers’ compensation authority.

Key Points
This is a new and developing challenge workplaces face as regulation and workplace developments arise from the COVID-19 pandemic. Employers should keep aware of public health orders that arise in each state and territory. If in doubt, contact TTIA for further advice on issues like practical control measures at the workplace to manage the risks of COVID-19. Finally, if uncertain about your obligations, don’t take action against an employee or implement a policy on Covid-19 without seeking advice from the appropriate State agency or your industry association.

For further advice and assistance call TTIA on the Timber National Employers Hotline on (02) 9264 0011.

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