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Vaccination Policy

Version 1.0 Updated 25 Nov 2021
Policy Manage

Commentary

Vaccination not only protects individuals from severe disease and death, but (based on Government advice) also protects others in the workplace by limiting the spread of the virus. There are many reasons why an Employer may make the decision to introduce this Policy, including:

  • In order to meet its workplace health and safety obligations;
  • Due to client/site requirements; or
  • Due to working with vulnerable persons.


This policy is necessarily general in nature and the facts surrounding the Employer’s circumstances for introducing this policy will differ. Accordingly, you may need to check your contracts of employment/industrial instrument and/or seek legal advice as to whether this policy is suitable for your organisation and the particular circumstances.

Cautionary notes
 
This policy is drafted on the basis that the Employer has undertaken an internal assessment to determine that it can issue its employees with a reasonable and lawful direction to be vaccinated. If you have not undertaken this process, please seek legal advice before implementing this policy.
 
If the Employer is seeking to rely upon workplace health and safety obligations to introduce this Policy, then an Employer should still undertake a risk assessment to determine if vaccination is an appropriate control measure in the circumstances to assist in preventing the spread of COVID-19.

The Employer should undertake a thorough consultation process prior to implementing this Policy.
 
Reasonable and Lawful Direction
 
Based on the existing case law, whether a direction is reasonable will involve a consideration of the following issues:

  1. the nature of the workplace concerned, taking into consideration the extent to which employees need to work in public facing roles or otherwise have contact with the public;
  2. whether social distancing is practically possible in the working environment (amongst both employees and customers/clients);
  3. the availability of other controls and their effectiveness, including:
    1. masks;
    2. regular sanitisation;
    3. regular testing COVID-19 testing (including rapid or non-rapid testing); and
    4. Employer implemented contract tracing;
  4. the extent to which the workplace serves vulnerable persons (including the elderly or persons with a disability);
  5. the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community;
  6. vaccine availability; and
  7. the extent to which vaccination can improve confidence or engagement with customers.

 
Responding to refusals

Any refusal to be vaccinated in accordance with this policy will need to be given due consideration prior to the Employer undertaking any action.
 
Under Australia’s discrimination laws, it is unlawful to treat a person less favourably on the basis of protected attributes, including gender, race, disability, national or ethnic origin, religion or age.
 
Mandating vaccinations will not, by itself, result in ‘direct discrimination’, given that an employee’s decision to refuse to be vaccinated is not an attribute protected by Australian discrimination laws.
 
However, ‘indirect discrimination’ is prohibited by discrimination laws. Indirect discrimination occurs where there is a rule or policy instituted which is the same for everyone but which some groups with attributes protected by discrimination laws are less likely to be able to comply with. Indirect discrimination is only unlawful where the requirement imposed is “unreasonable” in all of the circumstances.

Employers should obtain legal advice if it becomes evident or suspected that a discrimination issue might arise (for example, if an employee asserts that he/she can not be vaccinated because of a medical condition).

Important note to subscribers

The commentaries and documents are updated as necessary, to keep them relevant. You should familiarise yourself with the relevant commentary each time you create a document.

This document has been drafted to suit a wide variety of businesses, with a number of options available to enable you to customise the document to better suit your business. Nevertheless, you may need to make other changes to the document so that it suits the specific needs of your business. If you make additional changes, we cannot guarantee that the changes and modifications you make to the document will be legally compliant or enforceable.

This commentary and any additional information provided to assist you in creating this document, does not constitute legal advice.

If you are unsure about any aspect of this document (including the changes or amendments you make to it), you should seek appropriate advice from a lawyer, skilled in these issues. You may also wish to consider contacting Australian Business Lawyers & Advisors for targeted advice on your business’s specific needs.

You should consult with your financial advisor in relation to any relevant taxation or financial issues concerning the document you create.

After creating this document, you should read through it carefully to make sure it meets your business needs and is consistent with other industrial instruments, policies and procedures which operate in your workplace. This commentary is not designed to be provided to employees or other workplace participants.

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