Borders are now open, but what is your vaccination status?

23 November 2021

As we now all know, from midnight last night (well, as it turns out, it was actually at 11.56pm!) our State borders opened. This means it is critical that each council consider its own sovereign position regarding the vaccination status of its staff and also any other person who attends at its premises.

The safety of council employees and members of the public interacting with Council employees is a priority consideration. This means that, whilst there is not, currently, a mandatory requirement for councils to ask if employees are vaccinated, it is entirely reasonable that each Council ask that question as part of its legislative duties under the Work Health and Safety Act 2012. Being armed with this information enables the council to take appropriate steps to mitigate against risks to employees, to elected members and to members of the public.

Councils have a primary duty of care as a ‘person conducting a business or undertaking’ (PCBU) to ensure, so far as is reasonably practicable, the health and safety of council employees. Further, a PCBU must ensure, so far as is reasonably practicable, “that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury arising from the conduct of the business or undertaking.” There are separate duties placed upon the chief executive officer of a council to ensure that it has and implements, processes for complying with any duty or obligation.  Accordingly, ascertaining the vaccination status of employees is an available tool that will assist in meeting WHS obligations and the ability to assess risk in the workplace, which includes minimising the risk of harm to another employee.

Further, there are obligations upon individual employees to take reasonable care for their own safety and to take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons. For this reason, there is, at least, a persuasive argument of an obligation upon employees to inform their employer if they are not vaccinated or do not intend to be vaccinated.

In requesting and receiving this information from employees, the following is relevant to consider:

  • whether relevant employees as part of their duties interact with other employees and other people such as customers, the public, in the normal course of employment (for example, customer service staff, library staff, outdoor staff, compliance officers);
  • whether employees have minimal face-to face interaction as part of their normal employment duties (for example, where they are working from home);
  • whether it is necessary for a lawful and reasonable direction be issued to, at least, particular staff, requiring them to be vaccinated; and
  • how the council will manage sensitive health information whilst also adhering to the Privacy Act 1988 (Cth).

The management of these issues means regard must be had to:

  1. new employment contracts or agreements including WHS obligations that may extend to being vaccinated, when reasonable to do so and ensuring compliance with anti-discrimination legislation;
  2. the introduction of a vaccination policy;
  3. where an employee refuses a lawful and reasonable direction to be vaccinated, to ask the employee to explain their reasons for their position. An employee may have a legitimate reason for not being vaccinated. For example, he/she could have an existing medical condition meaning that vaccination is not (medically) recommended for them;
  4. where an employee, without good reason, refuses to be vaccinated, what disciplinary action is appropriate in the circumstances; and
  5. what position the council will take regarding entry to council and committee meetings for non-vaccinated members of the public.

Being armed with the vaccination status of employees enables a council to take appropriate steps to mitigate against potential risk of exposure to or the spread of COVID-19 and assist in the protection of staff, elected members and members of the public.

If you have any questions about this, or any of our previous Alerts, please contact:

Natasha Jones on 08 8113 7102 or njones@kelledyjones.com.au;

Tracy Riddle on 08 8113 7106 or triddle@kelledyjones.com.au; or

Michael Kelledy on 08 8113 7103 or mkelledy@kelledyjones.com.au