Over the past month there have been various developments in the response to the COVID-19 pandemic, particularly around the role of vaccinations as the major tool for reopening the economy and returning to work. We have set out below the major updates in relation to employers mandating vaccinations and employment law.
80 per cent roadmap
The NSW Government has released a fact sheet which sets out the rules and restrictions which will apply once NSW hits the 80 per cent (aged 16 and over) double dose vaccination target.
The fact sheet sets out that once the 80 per cent target is reached, employers must continue to allow (rather than require) employees to work from home, if reasonably practicable. For those employees who are not fully vaccinated, employers must require these employees to work from home if reasonably practicable. From 1 December 2021, regardless of the vaccination status of individuals, the ability of employees to work from home will be at the discretion of the employer.
Mandatory COVID-19 vaccinations
With vaccinations being the key driver for the roadmap out of the pandemic and lockdowns, employers have naturally been concerned about whether they can mandate that employees receive the COVID-19 vaccination. PCS has provided clear guidance for employers mandating vaccinations and their obligations and rights in this area, and has developed a COVID-19 Vaccinations Policy Kit.
Case law developments
There is an application currently before the NSW Supreme Court by a senior paramedic who is attempting to reverse the NSW government's vaccination mandate for health workers (the "August Public Health Order"). The relevant public health order requires that certain health care workers be vaccinated against COVID-19 and provide evidence of that vaccination.
The application by the senior paramedic seeks, among other things, declarations that the August Public Health Order is invalid, that he has a reasonable excuse to fail to comply with the August Public Health Order, or that it does not to apply to him. The applicant has been joined in his legal challenge to the NSW Supreme Court by two unregistered unions, the NSW Paramedics Association Inc (approximately 100 members) and the Nurses and Allied Health Workers Association Inc (approximately 400 members).
The NSW Supreme Court has listed this particular application, along with several other applications dealing with COVID-19 vaccinations, as "cases of interest" which can be viewed on its website. These cases will provide further guidance from the Courts on the issue of employers mandating vaccinations and whether they will be considered lawful and reasonable directions.