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COVID - Returning to the Workplace

 Thankfully, things appear to have settled somewhat on the COVID front in NSW, and the government has now removed the public health order requiring employees to work from home where possible.

We're getting a few enquiries relating to staff coming back to the workplace, so this article takes a look at a few of the most common questions:

  • Can I direct someone to come back to the workplace after they've been working from home?
  • What if they refuse?
  • Can I require that my staff be vaccinated?

Can I direct people to return to the workplace?

The first question that arises from this is: Is it a reasonable direction?

Assuming that, as an employer, you have considered and fulfilled all of your obligations to ensure that the workplace is safe, then this direction is probably reasonable. However, this requires that you have a COVID safety plan and related guidelines in place.

To assure your employees of this, you should:
  • Ensure they are aware of your COVID-Safe plan (which includes things like sanitising requirements, cleaning, distancing provisions, limitations on gatherings, etc)
  • Ensure they are trained in the provisions of the plan, including how it applies to customers / suppliers / other visitors to the workplace
  • Ensure they know what to do and who to ask if they have questions or concerns about the plan and related procedures.

The second question that arises is: Is this direction reasonable for everyone?

Remember, all of your employees are different. Some might have underlying health issues (or be caring for or residing with someone who does) and they may be hesitant to return if they feel at risk. This may also be the case if they face risk in travelling to or from the workplace. In these instances, the employer may ask the employee to provide medical evidence of this condition or situation.

The third question that arises is: Is this the "right" thing to do for my employees?

Remember, lots of people have gotten used to and are enjoying the flexibility of working from home. In the main, they have proven that they can be productive and trusted when working remotely. Discuss options with them – for example, some companies are choosing to bring people back for only part of the working week, with this amount increasing over time. You've probably earned a lot of goodwill, engagement and loyalty from your employees by showing this trust and flexibility – be careful not to undo that!

American writer Maya Angelou once famously said:

"I've learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel."

What if they refuse to come back – what can I do?

If a person refuses to return to work, the first step will be to find out why that is. It's important to have an open and frank discussion with the employee, and not to make assumptions about their particular circumstances. If the refusal is not based on a medical reason then the employer can potentially formally warn the employee that they risk further action or even termination for refusing to follow a direction.

However, whether further action is appropriate will boil down to whether or not the direction was reasonable in the circumstances and whether or not proper consideration was given to the person's reasons for refusing to return and whether suitable alternatives were appropriately considered. .

Recognise that circumstances around the virus can change quickly and suddenly, and you need to have plans in place to both stay up to date with any enforceable government directions and to be flexible and adaptable if onsite working again becomes problematic.

Can I require that my staff be vaccinated?

With the imminent rollout of the COVID vaccine, a number of employers are questioning whether or not they have the right to direct employees to receive the vaccine.

The reality is that employers in some industries/occupations (such as health and aged care industries and abattoirs) have historically, in certain circumstances, had the legal right to require that staff be vaccinated against specified diseases. We've also seen in recent times that health authorities are prepared to limit the entry of persons to prescribed places, where those wanting to enter have not had the required vaccinations (in recent times in NSW, for example, visitors to aged care facilities have been required to show evidence of flu vaccinations, with very few exceptions).

While we're not aware of it happening just yet, it is possible that government (Federal and/or State) will mandate that there are certain occupations or places in which it is a requirement for people to have received the COVID vaccination in order to enter those places and/or work in those occupations. In these types of cases, employers will have the right (indeed will likely be obliged) to enforce the requirement.

Where such mandates are not in place, the enforceability of a requirement by an employer for a worker to be vaccinated would ultimately be determined, in large part, by an assessment of the "reasonableness" of the direction. "Reasonableness" will itself be largely based upon the actual risk to health and safety associated with the worker not being vaccinated. Another factor to be considered would be the circumstances of the individual worker (who may not want to be vaccinated for medical or religious reasons, for example).

At the very least, employers would, in the absence of a government directive relating to their workplace/occupation, be wise to undertake a detailed risk assessment and seek formal legal advice before issuing a directive that workers must receive the COVID vaccine in order to enter the workplace and/or continue their employment.

While most employers would be well-advised to exercise considerable caution before issuing a direction to staff to have the vaccine, the option of encouraging or recommending to staff that they receive the vaccine is available.

The information above is general information only and should not be regarded as formal or legal advice. Let us know if you need further assistance.
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