Following months of recurrent lockdowns and restrictions in an attempt to slow or reduce the spread of COVID-19, both the Australian State and Federal Governments have said that administering COVID-19 vaccinations is the key to lifting lockdowns.
While COVID-19 vaccinations have been mandated in the workplace through Public Health Orders for specific companies and local governments, the state and federal governments have displayed a general resistance to enforcing COVID-19 vaccinations by private players.
However, the vast majority of businesses that are exempt from these public health regulations are now seeking clarification on how to further reduce the impact of COVID-19 on their operations, including whether it is legal to require their employees to obtain COVID-19 vaccinations.
Vaccination policies have been imposed by a number of Australian companies, including Qantas, and News Corp, which mandated COVID-19 vaccines for its printing employees. Globally, companies like Goldman Sachs, BlackRock, and Delta Air Lines are among the big names that have made vaccinations mandatory for all or some of their employees.
Australian fruit and vegetable manufacturer, SPC, has made its vaccination response plan public so that other companies can use the resources to develop their COVID-19 vaccine requirement.
Additionally, WorkSafe Victoria recently cleared SPC of allegations that it had not appropriately consulted its employees about the company’s mandatory vaccine policy. Unions such as the Australian Manufacturing Workers’ Union and the Australian Council of Trade Unions have criticised SPC’s intention to mandate vaccines for its employees.
However, SPC was found to have provided appropriate information and time for its staff to be vaccinated after a Work Safe Victoria inspection. As a result, the mandates are still in effect, and workers must have received their second dosage of vaccine by December to gain access to their workplace.
“We are delighted to share this Response Plan with our friends and colleagues in the Australian business world. SPC is proud of the leadership position it has taken on its mandatory vaccination policy,” said Chairman Hussein Rifai and CEO Robert Giles.
“We understand that vaccination is our pathway toward an open country, economic and social freedoms, and, critically, safety for our workers. We look forward to continuing to speak with the government, other businesses, and stakeholders.”
Dynamic Business has looked at various aspects of the policy for businesses considering adopting something similar, as well as how SPC intends to carry out its plan.
Here is an example of a timeframe for adopting a mandatory vaccination policy, according to SPC.
Consideration of Policy
- Legal / Regulatory
- Lawful and reasonable direction
- Defence plan
- Preparation of
key documents, including clauses and policies
- Presentation of policy considerations and legal advice
- Union and employees
- Communications to employees and other stakeholders
- Adoption of policies
- Amendments to contracts
Education and Enforcement
- Flexibility as required
- Dedicated support
- Engagement and dialogue
- Disciplinary action
Scope of the policy
Under the SPC COVID-19 Mandatory Vaccination Response Plan, it is a condition of employment that all employees who are eligible to receive the COVID-19 vaccination must be fully vaccinated in order to perform duties at any of SPC’s workplaces.
If an employee is not medically eligible to be vaccinated against COVID-19, they must provide evidence of having a health condition for which obtaining a COVID-19 vaccination is contraindicated.
Examples of such evidence include a medical certificate from a duly qualified registered medical practitioner that sets out the basis of why the employee is not eligible to obtain a COVID-19 vaccination.
The Company will consider other circumstances where there is a genuine reason for which an employee is unable to receive a COVID-19 vaccination, and this will be determined on a case-by-case basis. In such cases, the employee will be required to provide additional documentation or evidence to the satisfaction of the Company.
Here’s the complete memo of the coverage of the policy:
What does the law say?
Employees are expected to follow any lawful and reasonable order issued by their employer, as per their employment contracts. As a result, if an employer’s directive that an employee acquires a COVID-19 vaccination is deemed “lawful and reasonable,” the employee may be required to do so as a condition of employment.
Moreover, employees have a duty under the WHS/OHS laws to take reasonable care for their own health and the health and safety of other employees who may be affected by their acts or omissions. They also have a duty to comply with their employer’s lawful directions in respect of safety matters.
Is the direction lawful?
If the directive is legal and reasonable, an employer can enforce a mandatory COVID-19 vaccination policy. In mandating vaccination, employers such as SPC can rely on their obligations under relevant WHS/OHS legislation, which includes:
- Eliminating risks to health and safety (including identifying and controlling risks to health or safety associated with potential exposure to COVID-19);
- Providing and maintaining a safe and risk-free working environment for employees and monitoring the health of employees.
- Employees are required to take reasonable care for their own health and the health and safety of other employees who may be harmed by their actions or omissions under WHS/OHS laws.
- They also have a legal obligation to follow their employer’s legal safety instructions.
Provide a robust campaign
Surveys allow a business to efficiently collect honest feedback, opinions, and responses from customers and use that information to improve different areas of the business. Survey responses can confirm or provoke discussions on strategic business decisions and provide unbiased data to guide decision-making.
Educate employees across the organisation on the risks and advantages of vaccination versus non-vaccination. Make an extra effort to listen to and answer the concerns of employees who are afraid to be vaccinated. Education has numerous advantages versus compulsion.
Survey and Questionnaire
Surveys and questionnaires are one of the most effective ways to understand and address the concerns of employees who are hesitant to be vaccinated. Describe the steps you used to create your policy in detail.
Questions about vaccination policy and whether or not they intend to get vaccinated can be added.
The most important step is to draft a contract between employee and contractor that includes all necessary elements. It’s crucial to remember that the provisions below are supplied as starting point templates and should be examined with legal counsel on a case-by-case basis before being included in relevant documents.
Determine the legal and practical risks of requiring staff vaccinations, as well as what should be included in such a policy. Establish a means for tracking compliance, which should include a reasonable time frame for employees to receive their vaccinations as well as the necessary follow-up dose.
Here’s an example of a contract between employees and SPC:
SPC’s vaccination policy:
“As of 1 January 2022, it will be a requirement of attending any SPC worksite that any Worker must be Fully Vaccinated against COVID-19 unless they have been granted an exemption by SPC in accordance with this policy. Vaccination must be undertaken on the advice of an accredited health practitioner (including health practitioners at any authorised COVID- 19 vaccination centers).”
“All Workers will be required to provide evidence acceptable to SPC of being Fully Vaccinated. SPC will accept for these purposes a copy of your Immunisation History Statement, or alternatively a copy of your COVID-19 Digital Certificate.
“This policy applies to any visitors as well as all employees (permanent or casual), contractors, labor-hire personnel, interns or secondees who may be performing work at any of SPC’s workplaces in Australia (Workers).”
Review the requirements for exemption
Here’s how SPC listed the exceptions to its Model Vaccination Policy:
“SPC understands that not all Workers will be able to receive an Approved Vaccine, including due to medical conditions for which there is a Recognised Contraindication to receiving any of the Approved Vaccines.
“Any employees who have such a medical condition are required to provide medical evidence satisfactory to SPC of the medical condition and the reason for which they are unable to receive any of the Approved Vaccines.
“Any medical certificate provided in this respect must be issued by a duly qualified medical practitioner with current and valid registration and must clearly identify the medical condition, and specify that the Worker’s medical condition gives rise to a Recognised Contraindication in respect of all Approved Vaccines.”
Any Worker who is unable to become Fully Vaccinated for any other reason, including by reason of a sincerely held religious belief, religious practice, or religious observance. Requests for an exemption will be considered by SPC on a case-by-case basis.
Sketch a timeline
Notifying the entire staff about the program’s timeline is an excellent idea. This can include vaccination deadlines and what to do if an employee refuses to be vaccinated.
Employees of SPC who fail to comply with this policy will be subject to disciplinary action, which may include termination of employment.
For all other Workers, compliance with this policy is a condition of accessing any of SPC’s worksites. SPC reserves the right to refuse entrance to any Worker who does not comply with this policy.
Employers are advised to undertake vaccination history surveys on their employees.
Here’s the sample of the questionnaire:
Financial assistance and leaves
Workers should be encouraged, where possible, to be vaccinated outside of regular working hours. However, personal circumstances may make this difficult for some.
Here are the perks SPC is offering its staff:
- For permanent employees covered by the SPC Operations Shepparton (Food Preservers) Enterprise Agreement 2020, two hours of ordinary time pay will be offered to receive a vaccination against Covid-19.
- Similarly, subject to production plans, at production facilities, all employees who attend appointments inside of rostered hours will not be deducted for time away from the workplace.
- Additionally, for permanent staff up to two days (1 day for Casual staff), special purpose leave will be available to staff who experience a negative reaction after receiving a dose of an Approved Vaccine.
- Applications for more time off if employees are unwell after receiving a dose of an Approved Vaccine will not be unreasonably withheld by SPC. All-time off must be approved by the line manager. Periods of the absence of 3 days or more require a medical certificate.
- Additionally, all staff who on the advice of an accredited health practitioner, become Fully Vaccinated will be provided with a gift voucher of $50 for providing evidence to SPC of their vaccination in accordance with this policy (regardless of whether the staff member was Fully Vaccinated before or after the commencement of this policy).
- This Response Plan is produced by SPC, with the assistance of its legal advisors. It is intended to provide general information in summary form, on a range of issues and topics pertaining to COVID-19.
- The contents in this Response Plan do not constitute legal advice and should not, under any circumstances, be relied upon by any reader or recipient of this Response Plan.
- Formal legal advice should be sought by any reader in relation to the issues and topics contained in this Response Plan.
- The references and sources of information included in this Response Plan are not under the control of SPC or its legal advisors. The inclusion of any reference or source of information does not imply endorsement by SPC or its legal advisors of the site or a relationship with the primary producer of that information.
Weblink to all the documents: spc.com.au/covid-19/
SPC’s COVID-19 Mandatory Vaccination Response Plan: