Business Risks for Vaccination Mandates

We understand this is a very difficult time. Employers are under tremendous pressure from governments to comply with mandates intended to force medical interventions on their employees.

You may have employees who are uncomfortable with taking the covid vaccine and don't intend taking it. If there is no public health order directing you, the simplest way to resolve any escalation is to respect their choice. If you are being directed through a public health order, this means you are faced with a difficult decision to make.

 

Choosing to enforce the direction will mean you may have to alter employment for a worker who decides not to take the covid vaccine. You rely on your workers to provide you with their skills and experience. No business owner wants the negative impacts that losing valuable staff will cause, as skills shortages can be difficult and costly to replace, hurting our businesses. So before terminating their employment, consider negotiating alternative outcomes such as:

  • allowing them to work from home

  • allowing regular testing in lieu of the vaccine (see Rapid Antigen Testing)

  • approving leave entitlements, or

  • changing their position to one that is determined has less risk

Remember, an employer cannot make their employees participate in a medical procedure. Your employees are entitled to voice their opinion, and it is important to respect their choices. We need open and respectful dialogue if we are to have any success at resolution.

Choosing to stand with the decision of your employee, means you would likely need to ask the Minister or Department of Heath to change or reconsider the relevant Public Health Order. Until now, all the pressure has been on workers and employers, while Scott Morrison makes statements like:

We do not have a mandatory vaccination policy in this country. We do not have that. We are not proposing to have that. That is not changing. But an employer may wish to make a reasonable directive to staff and if they do so, they need to do so consistent with the law.
 

We should take heed in those comments. This has no basis in law, thereby exposing owners or directors to risk of liability from being pursued directly by the employee for negligence and other tortious actions, in the event of any injuries or damage resulting from being vaccinated to comply with employers enforcing mandates.

As employers, it is time to think hard about the implications these directions have on your own obligations to employees and contractors because, to reach their own objectives, the government is forcing employers to breach these obligations, without offering protections.

To assist employers who want to question these mandates, we provide a very extensive template letter that employers should use to press these issues with government, instead of enforcing the mandates. It is entirely reasonable and essential to have these questions of law and liability answered. We have started with letters to the Victorian, Western Australian and Queensland Governments, and will follow shortly with the other States and Territories.

We understand that the unions, DHS, Worksafe and Safework Australia are making threats to come after your business and shut down your premises if you do not comply; however we say that these directives are coercive, and are not based in law. Do not fold to these empty threats - because that is all they are at this stage.

The Australian Immunisation Handbook states that one of the criteria for consent is "to be given voluntarily in the absence of undue pressure, coercion or manipulation." 

We urge employers not to panic and to stand your ground. This is your opportunity to say no to protect your business and your employees. 

There is strength in numbers, so we recommend you complete the form on the join us page, selecting the industry as "Business owner". When the time comes, we can connect business owners, and build strong actions to protect you as employers. 

We also provide a Business Risk Register to give you strategies on how to measure these risks for yourself, including lawful hazard control measures.

 

In spite of the government rhetoric, these vaccines do come with risks, as shown on the TGA adverse events page, and as evidenced by the increasing number of exemptions being offered within these directives. These adverse reactions exposes you to liability, both you and your employees should be protected from these risks and from the government for offloading their responsibilities onto employers!

These decisions are upon us now, whether we like it or not. So it is important that we approach this with respect and not with a adversarial or combative approach as this will undermine the ability for each party to work through this difficult time.