State Coordinator (and Commissioner of Police) Grant Stevens has indicated that State-imposed vaccine mandates will be “void” once the State of Emergency that South Australia has been under for the past two years lapses. The emergency declaration is due to expire on 28 May.

Vaccine mandates have already been repealed for police officers, teachers and public transport workers, but have been kept in place in various sectors of the health care industry.

Since SA’s state of emergency was declared on 22 March 2020, Section 25 of the Emergency Management Act has enabled the State Coordinator to issue public directions to mitigate the impact and spread of COVID-19.

It is unclear which levers the State Government will pull to manage COVID-19 in the State once the emergency declaration ends. Premier Peter Malinauskas has indicated that his government will review the state’s emergency laws, and also the Public Health Act, as one of his first priorities.

In the absence of emergency laws, the Public Health Act is the main piece of legislation to handle a public health crisis, but its utility in dealing with a pandemic such as COVID-19 has not been tested.

SA’s public health laws do not appear to enable such broad discretionary powers as, for example, NSW’s public health laws do. NSW never declared a state of emergency, but its public health laws still gave the Health Minister wide powers to issue directions on vaccines, social distancing, quarantine, mask-wearing, and essential workers.

Given COVID-19 numbers are expected to rise over the coming months, it remains to be seen how the government will manage its response to COVID-19 without emergency powers.

WORKPLACE VACCINE MANDATES

Much has been written about the rights of employers to implement vaccine mandates for workers during the pandemic. The overwhelming legal opinion, backed by Court and Tribunal decisions at various levels, has been that mandating COVID-19 vaccinations would generally be lawful and reasonable so long as policy implementation complied with work health and safety legislation.

Employers who have mandated vaccines, and implemented other covid mitigation measures, would generally have felt fairly confident in the lawfulness and reasonableness of their policies, particularly if they reflected official Federal and State health advice.

But with restrictions continuing to ease, vaccine mandates for several industries being repealed, and the possibility that public health advice will recede when we are no longer in a state of emergency, businesses may be reviewing their Covid-mitigation policies.

The cessation of the State of Emergency may lead more employees to challenge workplace policies that they believe unfairly intrude upon their personal freedoms. But this state of affairs may also lead to workers being aggrieved about not being sufficiently protected from COVID-19 in the workplace, particularly if they have medical conditions that may make them more susceptible to its worse effects.

So, in light of this far less prescriptive environment, but where COVID-19 still presents a significant health risk to the community, the responsibility falls largely on employers to balance competing interests of maintaining workplace safety, respecting individual autonomy, and business profitability and viability.

What does the law say about vaccine mandates?

The constantly evolving COVID-19 situation does not alter an employer’s legal obligations to provide a safe workplace and to mitigate risks to health and safety.

It is well established in law that employers can impose rules on employees for the purpose of maintaining a safe workplace. Such rules could relate to wearing protective clothing, mobile phone use in high customer traffic areas, speed limits on machinery, and vaccine requirements.

The requirement for example, that nursing home workers be vaccinated against the flu is a well-established lawful and reasonable measure.

In this sense, imposing covid vaccine mandates is not radical. It is merely the application of accepted work health and safety principles to an emergent risk. But the controversy around this issue partly stems from the fact that workers who were never required to take such measures now need to be vaccinated in order keep their job, and the newness of the vaccine technology has created hesitancy among a significant portion of the community.

However, workplaces must mitigate health and safety risks. At the time of print, COVID-19 remains a significant health and safety risk, and overwhelming scientific opinion tells us that vaccination is the best defence against this risk.

So, regardless of whether we are in a state of emergency or not, employers would likely be within their rights to enforce measures aimed at reducing the risk of COVID-19 in the workplace.

How prescriptive can covid mitigation measures be?

A helpful guide for workplaces in navigating this issue is the Fair Work Ombudsman’s advice on workplace rights and obligations in relation to COVID-19 vaccinations. This should be read in full, but the following excerpt is particularly pertinent.

An employer may still be able to give their employee a lawful and reasonable direction to get vaccinated, even if there is no public health order, agreement or contract with terms about COVID-19 vaccination that applies.

Whether a direction is lawful and reasonable depends on the facts of the individual situation and needs to be assessed on a case-by-case basis. Just because it may be lawful and reasonable to give a direction to one employee, that doesn’t mean it will automatically be lawful and reasonable to give the same direction to another employee or to all employees.

To help employers evaluate the reasonableness of vaccine directives, the FWO has divided work into four tiers.

• Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (for example, employees working in quarantine or border control).
• Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 (for example, employees working in health care or aged care).
• Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment.
• Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home)

The importance of consultation

Consultation is crucial when considering implementing policies to mandate vaccines, or indeed to wind back these policies.

The Work Health and Safety Act requires employers to consult with workers who are, or are likely to be, directly affected by a matter relating to work health and safety.

The maximum penalty for a proven failure to consult with affected workers is $20,000 for an individual and $100,000 for a body corporate.

Modern awards and enterprise agreements generally contain a consultation term requiring the employer to consult with employees about any workplace change that is likely to have a significant effect on the employees.

The importance of consultation was highlighted in a decision of the Fair Work Commission, which ruled that BHP’s staff vaccination policy was invalid because the company failed to adequately consult its staff on the policy in accordance with the relevant enterprise agreement. Following this decision, BHP consulted its staff, and lawfully imposed the policy it originally intended to impose.

If a workplace decides to repeal vaccination policies, it may be met with resistant staff who are concerned that allowing unvaccinated people in their workplace heightens their risk of a COVID-19 infection.

An employer would be hard-pressed to develop a policy that pleases everyone. Nonetheless, it needs to be fair, reasonable, faithful to legal obligations, and developed following genuine efforts to consult with staff.

When drafting such policies, employers should also consider practicable measures than can minimise the risk of COVID-19 in relation to unvaccinated staff, such as:

• Requiring staff to take regular Rapid Antigen Tests;
• Social distancing and mask wearing;
• Working from home where practicable;
• Approving leave without pay; and
• Moving staff to roles with limited face-to-face contact.

Such measures may reflect an employer’s genuine efforts to accommodate unvaccinated staff while also maintaining a safe workplace.

Another necessary consideration of course is the need to keep the workplace operational. One of the key reasons for repealing vaccine mandates in the education and police sectors was the staff shortages putting immense pressure on the ability of workplaces to conduct their core functions. 

What is the key takeaway?

Employers have an obligation to maintain a safe workplace environment. Work health and safety measures need to be “lawful and reasonable”, but the definition of “reasonable” is broad. If a work health and safety policy has a stated cause to keep people safe, and reflects a genuine effort to achieve that stated cause, then it is likely that a court will deem that policy valid.

ALTERNATIVE WORK ARRANGEMENTS

There is no doubt that the pandemic has upended workplace norms. Many have realised that working from home is not just an indulgence petitioned by lazy young workers who want to stay in their pyjamas and cuddle their pets all day.

Flexible working arrangements actually have real benefits, such as increasing productivity, eliminating commute times, and increasing staff morale and well-being.

Others have found working from home lonely, depressing and frustrating (and in situations of toxic or abusive domestic relationships, traumatic).

There are many factors which determine the extent to which working from home is a positive or negative experience, and we are likely to see people continuing to request working from home, with others desperate to get back into the workplace.

Of course, each individual workplace has its own unique environment, and the conditions that enhance the culture of one workplace will not necessarily work for another workplace.

Working from home

By now, workplaces should have fairly comprehensive policies relating to flexible work arrangements.

There have been periods during the pandemic where working from home was mandated, and other periods where it has been strongly advised by health authorities.  We are now in a phase where each workplace really needs to work out for themselves what their employees’ working arrangements will be.

Some factors an employer should consider when developing a flexible work policy include:

• The operational needs of the business
• Whether an employee can just as effectively work from home
• The specific circumstances/needs of each employee
• The impact of flexible working arrangements on workplace culture
• Health and safety requirements with regards to working remotely (eg ensuring home work spaces are compliant with WH&S laws
• Rights of employees to request flexible working from home arrangements

Under the Fair Work Act, certain categories of workers have a legal entitlement to request flexible working arrangements. They include an employee who is:

• a parent of, or has responsibility for the care of, a child who is school age or younger
• a carer (within the meaning of the Carer Recognition Act 2010)
• a person with disability
• aged 55 or older
• experiencing family violence, or
• providing care or support to a family member, or someone they live with, who is experiencing family violence.

An employer who receives a written request from an employee in the above category,  must consider and discuss the request with the employee, respond to the request in writing within 21 days, and provide reasons if the request is refused.

Any employee can request flexible working arrangements, and the employer should consider each request on its merits.

There is no requirement for an employer to agree to a flexible working arrangement request. However, employers can only refuse such a request on “reasonable business grounds” which can include (but are not limited to) the following:

• that the new working arrangements requested by the employee would be too costly for the employer;
• that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
• that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
• that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
• that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

With thousands of people infected with COVID-19 every day, it is understandable that some people would rather work from home to reduce the risks of contracting the virus. This would particularly be the case for people with weakened immune systems, or who care for someone who might be especially vulnerable to COVID-19.

Hopefully, an employer and employee can come to some kind of agreement in relation to flexible working arrangements. But if not, there may be an option to take some form of leave if available.

If an employee refuses to work on site and the employer reasonably denies the employee’s request to work from home, this may result in the employee being stood down, or or facing disciplinary action up to and including the termination of their employment.

However, an employer does have a responsibility for the health and safety of employees, and is expected to consider the circumstances of each employee to determine whether alternative working arrangements should be made. This is particularly the  case for vulnerable people, such as older employees or employees with underlying health conditions.

A Fair Work Commission decision handed down on 7 April has shed some light on the rights of employees to work from home.

In this case, the Australian National Audit Office terminated the employment of an auditor for failing to comply with direction to return to the office. However, the FWO found that the directions were unreasonable and reinstated the auditor’s position. Some the factors that led the FWO to determine that the return to office directive was unreasonable were:

• All staff were encouraged to work from home for a period of time during the COVID-19 pandemic
• The applicant had provided medical support for her own health concerns relating to COVID-19
• The applicant met the definition of a carer when caring for a terminally ill relative interstate
• The applicant had demonstrated the ability to fulfil her employment duties while working from home

The Commission ultimately determined that revoking the working from home arrangement was unreasonable and there was no valid reason to terminate the applicant’s employment.

The key message here is that employers need to take into consideration the individual circumstances of each employee when taking measures to alter working from home arrangements.

The risks of close contacts working on-site

As well as having responsibilities for the health and safety of employees, employers also need to consider the business impacts of its workforce being infected with COVID-19.

With rules on close contacts easing on 30 April, the likely result is more people coming to work while infectious, although employees will be required to notify their employer if they are close contacts and are encouraged to work from home where possible. Employers will need to consider how they will manage these risks. If a person has been in close contact with person who has tested positive COVID-19, they may be able to direct the close contact not to come into work, due to the health risks to the broader workforce. An employer will have to be able to show that any such direction was a reasonable action to manage health and safety risks.

An employer should consider alternative work arrangements for workers who may be at risk of infecting others. This could include working from home, putting the worker temporarily on reduced duties, or giving the employee alternative duties that limits exposure to others for a prescribed period of time. An employer may also consider requiring employees to provide evidence of non-infection, such as via a Rapid Antigen Test.

While an informal agreement could be reached for a worker to use their accrued sick leave while isolating, the Fair Work Act prescribes that an employee may only take paid personal leave if they are unfit for work because of a personal illness or injury, or if they are providing care or support to a member of the immediate family or household due illness, injury or an unexpected emergency.

WORKERS COMPENSATION

A South Australian worker who contracts COVID-19 will be entitled to benefits  as part of a workers compensation claim if they it is accepted that:

1. the COVID-19 arose out of or in the course of the worker’s employment; and
2. the employment was a significant contributing cause of the injury.

If accepted, such a worker would be entitled to claim reasonable medical expenses and lost income as a result of contracting COVID-19. A worker may also be eligible to claim workers compensation if they caught COVID-19 at work and it exacerbated a previous injury or illness.

Due to the fact that an employer’s duty to provide a safe work environment extends to working from home arrangements, employers must also consider the risks of an employee catching COVID-19 at home, or while outside of the home on a designated break. This is in addition of course, to assessing the safety of employees’ work from home set-ups.

But the pandemic’s impact on workers compensation reaches far wider than claims for contracting the virus itself. It is the psychological stress of the pandemic, which has caused so much employment uncertainty, created angst among staff with differing views on vaccines and other health measures, and has had serious mental health effects on some people who have been directed to work from home or directed to work on-site, that likely make up the majority of COVID-19 related claims.

CONCLUSION

While we have sophisticated modelling tools, there is no way we can accurately predict how COVID-19 will evolve  and continue to impact South Australians. Employers need to balance many considerations, ensuring they create a safe work environment, managing the differing circumstances and expectations of employees, and keeping the business viable.

Ultimately, it comes down to the principle of reasonableness, and while the idea of “reasonableness” is somewhat subjective, in law it includes considerations such as whether an action was:

• made in good faith
• proportional to the risk
• in service of a legitimate objective
• within the bounds of laws and regulations
• consistent with case law

This is why communication and consultation are so important. By properly consulting staff and making a genuine effort to obtain their feedback, employers can demonstrate that they have taken appropriate steps to act in the best interest of their employees, even if consensus among employees is unlikely to be reached.

The Law Society of SA would recommend employers seek specific legal advice in the event that they are considering implementing policies or taking action as outlined in this article.

JUSTIN STEWART-RATTRAY, PRESIDENT, LAW SOCIETY OF SA