Mandates, Masks and Scanning: What can Employers Insist on?

Let’s start with yesterday’s (Wednesday 23 March) changes. Vaccine mandates will only be required for those working in health, aged care facilities, corrections and the border (5 April). Outdoor gathering limits will go (26 March), indoor limits increased to 200 (26 March), and vaccination passes will not be required (5 April). Scanning and recording of entry will no longer be required (26 March), and masks will no longer be required at outdoor venues (26 March).

As we have advised in previous Newsfeeds, most decisions an organisation makes about managing the impact of Covid-19 relate to health and safety factors. Health and safety actions require a risk assessment to determine how you manage the risk and there is an obligation to consult with staff as part of this process. As new information becomes available the risk assessments should be reviewed. If an organisation relied solely on a government mandate for vaccinations or mask wearing and have not considered this as part of a risk assessment then undertaking one is the first step. For those with existing risk assessments a review which takes into account whether the region has reached the peak of cases, the hospitalisation rates (being higher or lower than expected), the level of eligible people who have been boosted, new variants, and the vulnerability of employees or clients will answer some of the key questions about what is reasonable to impose. The assessment may confirm an ongoing requirement for vaccinations, mask wearing and vaccine passes.

If an employer determines vaccinations are no longer required, and unvaccinated previous employees come back looking for their jobs, does the employer have any obligation to re-employ them? The short answer is no, however there is a big ‘but’. If the employee is not re-employed (and you have a vacancy), the employee may raise a personal grievance claiming their dismissal was unjustified because it was not related to the vaccination requirement. Their evidence is the fact they were not re-employed, and therefore there must have been another (unjustified) reason for their dismissal. Ensure there are sound reasons, backed up by evidence, why an ex-employee is not re-employed.

If you have any questions about your organisation’s specific concerns, please call one of our team of Consultants.