With Australia transitioning into a recovery phase, there are new areas of the working relationship which employers will need to adjust to in the post-pandemic working environment.
There have been developments in recent weeks which have shed light on new work paradigms which employers need to prepare for.
No jab no work?
Recent developments in the race to create a vaccine for COVID-19 have yielded some promising results, with suggestions that a vaccine may be ready by March 2021.While this is welcome news, it brings up the question of whether in a post-pandemic working environment it would be lawful and reasonable for employers to direct employees to receive the vaccine.
As there is, to date, no vaccine available the closest example we have of similar directions relate to other vaccinations such as the flu. In the health sector, the Victorian Government introduced the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic), which amends the Victorian health legislation to enable the state government to direct hospitals to require employees and contractors to be vaccinated against specified diseases. Given the nature of work performed in the health industry, with employees and contractors regularly exposed to a myriad of diseases and vulnerable patients, the lawfulness and reasonableness of such a direction is in little doubt. However, outside of this sector there is less clarity around which employees would be required to vaccinated against certain diseases. In a post-pandemic work environment it is certainly conceivable that the potential ramifications of COVID-19 outbreaks in a workplace make a direction by an employer to receive a COVID-19 vaccination more reasonable.
There is a case that is due to be heard by the Fair Work Commission (the "FWC") early next year which will likely shed some light on whether employers, in a post-pandemic working environment, can mandate that employees receive vaccinations where they are not in directly impacted industries such as health. In this case the employer, a childcare provider, put in place a policy requiring employees to have the flu vaccination unless a medical exemption applied. The employee claimed that she had a medical exemption on the basis of her sensitive immune system and that a vaccination could only be given with free and informed consent. The employer rejected the employee's objections, and two months later she was terminated from her employment.
Even if the FWC rules in favour of a direction to vaccinate, mandatory vaccinations also bring into question concerns around the privacy aspects of such directions. Employers will likely need to be able to access employee medical records to enforce such directions, which touches on areas of privacy law and the rights of employers to access sensitive personal information of employees.
What about working from home?
As social distancing restrictions have eased across Australia, we have seen the gradual return of the majority of businesses to working in the office. At the start of November, NAB's group executive sent a company-wide email instructing its employees to return to the office, with the objective of having 40% capacity in the following weeks. An NAB executive referred to the need to return to a high-performance culture as part of the direction, stating that "by returning to the office, we want to start again unlocking the benefits of in-person collaboration, such as better innovating for customers, learning from each other, problem-solving together, mentoring and building our high-performance culture"
However, the oft-repeated mantra from many people has been that working from home is here to stay, and that there is no returning to "normality" in the post-pandemic working environment. As that same executive stated, "our workplace will continue to be flexible and inclusive, but we expect more colleagues will be able to adopt a hybrid model that enables time spent working from both the office and the home".
The ACTU has recently released a Working from Home Charter, in a bid to create a guiding framework for unions in negotiating for rights to work from home. The charter sets out the position of Australian unions on how to make working from home arrangements work, including calls for such arrangements to be voluntary and for employers to remain responsible for health and wellbeing during work hours. Notably, it also calls for employees to have a "right to disconnect" outside of work hours.
If the tenets of the Working from Home Charter become the norm in the post-pandemic working environment, it will have a significant impact upon how many organisations are able to operate. Currently, employees do not have a right to work from home, and even where the governments have mandated that employees work from home, there are limitations on what employers are required to provide. As we have noted previously, working from home has a variety of impacts on both employers and employees, and as such requires organisations to talk to their people very openly about these issues.
- Employers should to consider their operational needs and whether their current practices and policies are fit for purpose in a post-pandemic working environment.
- Employers need to have open and frank conversations with their employees about operational needs moving forward.
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