Should you insist employees are vaccinated? Can franchisors require franchisees to make a Covid-19 jab the path to employment? The news that manufacturer SPC has taken the step of making Covid vaccination mandatory for staff opens up the issue for all employers.
Inside Franchise Business Executive spoke with Stephen Giles, partner at law firm Norton Rose Fulbright, to get a legal perspective.
“Our advice to most franchisors would be to get ready, as by the end of this calendar year as community attitudes to Covid-19 are changing and Government policy seems likely to move more towards a “learn to live with Covid-19” framework,” Giles says.
“System-wide implementation is likely, and customer expectations and Government policy are likely to drive action,” he says.
Ultimately, this is a decision for franchisors and franchisees to consider.
“Responsibility sits primarily with the employer, and franchisors and franchisees are both employers. The biggest risks are in implementing a policy badly.”
He believes franchisors and franchisees are likely to be united on this, and expects franchisees will turn to franchisors for guidance on the issue.
Providing a safe workplace
So what are the considerations about whether or not to mandate Covid-19 vaccination?
For starters, employers must provide a safe workplace and take into account current health concerns.
“Covid-19 has potentially serious health consequences and vaccination has demonstrated benefits in preventing illness and serious infection,” Giles says.
Employers will need to be aware that various anti-discrimination laws can apply, or at least will need to be carefully navigated.
And the apparent capacity for Covid-19 to spread through ways other than human contact has an impact on businesses’ product safety and food handling requirements.
Giles says franchisors need to consider other relevant points.
- There is an increasing level of infectiousness, with those at risk broadening to include young people. So the risk of infection at work is real, and probably increasing.
- Access to vaccines is growing, and by the end of this calendar year the vast majority of people wishing to be vaccinated should be able to secure access.
- There is rapid and effective workplace antigen testing for Covid-19, so it is feasible to test employees.
5 things to consider about mandatory staff vaccination
- A business can ask for proof of vaccination on the basis that the information is relevant to the design of risk management processes.
- A business may be able to require employees to provide proof, but this needs to be considered on a case by case basis.
- Care needs to be taken in how employees are asked for proof.
- There may be Privacy Act implications, so businesses should carefully consider how to record, store and use information.
- There is a potential risk of adverse publicity. Of course this risk can cut both ways and be challenging to navigate due to differing community views on vaccination, worker safety and individual freedoms.
Most businesses have not yet made vaccination a requirement for attendance at work, but many are recommending it, and some (notably those with a higher Covid-19 risk level) are taking the initial steps towards having a mandatory regime in place.
Giles points out the current guidance issued by SafeWork Australia is that for most businesses ‘it is unlikely that a requirement to be vaccinated will be reasonably practicable’.
“Our workplace experts expect this guidance to change at some point, due to the outbreaks of the Delta variant and changes to vaccine accessibility and probably broader Government policy. So we expect many businesses will at least make preparations for having a mandatory vaccination requirement,” he says.
SafeWork Australia stresses a vaccine is only one part of keeping the Australian community safe and healthy and employers must continue with distancing, health and cleaning measures.
Employers can encourage workers to get a Covid-19 vaccination, if they are able to either by referring them to the Department of Health website or by developing their own material.
Employers must meet the conditions
However SafeWork Australia cautions that any employer information must meet the conditions outlined in the guidance published by the Therapeutic Goods Administration (TGA):
In summary, the TGA provides that corporate entities are permitted to encourage eligible staff to be vaccinated as recommended by the Government and in accordance with the advice of a health practitioner, however messaging must not contain:
- the name or active ingredient or any other information that would identify the vaccine (e.g. Pfizer or AstraZeneca)
- any statement, or implication comparing different COVID-19 vaccines (or comparing vaccines with medicines)
- statements to the effect that COVID-19 vaccines cannot cause harm or have no side effects
- any statement that is false or misleading; or
- promotion of any vaccine that has not been approved by the TGA.
