As we reacquaint ourselves with our physical workplaces and see colleagues face-to-face, we will also meet fresh issues. Top of the list are government guidelines, or lack thereof, on COVID-vaccinations for organisations. As state governments consult with employers and unions and the matter evolves, other questions loom about the impact of working from home. Surveys show the majority of workers have fallen for home office life and the freedom it delivers. But will those who continue to WFH if their workplaces allow risk being penalised, either by underpayment or being overlooked for promotion? And do employers have to be careful not to “force” people back to work?

Confusion around these issues may easily trigger a spike in claims this year according to employment lawyers and human resources experts. Now with the COVID vaccine rolling out, the way forward is mulit-faceted said Megan Bowe from the employment and safety team at Colin Biggers and Paisley Lawyers.

“Given the high-risk nature of this area it is clear there is no one size fits all answer,” Ms Bowe said. “Important questions must be asked as to whether employers can and should make vaccination mandatory and what may constitute a reasonable basis for refusal.”

Furthermore, risks around mandatory and non-mandatory vaccination need to be comprehensively assessed, and employers must set clear and appropriate policies to avoid confusion, Ms Bowe added.

Grey areas

Official government advice contained on the Safe Work Australia website Vaccination | Safe Work Australia states there are “currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against COVID-19.

However, this could change. According to SWA State and territory health agencies may make public health orders requiring some workers to be vaccinated, such as those considered to be in high-risk workplaces: “While the Australian Government is not making vaccination mandatory, states and territories may do so for some industries or workers through public health orders….If public health orders are made, you must follow them. You should stay up to date with the advice of your health agency.”

In relation to vaccination generally, Victoria is the only state so far to address  mandatory vaccinations from a legal standing. Last year legislation was amended requiring all workers employed or engaged in public hospitals denominational hospitals and health service establishments be vaccinated against “specified diseases”.

Other states and territories require residential aged care workers be vaccinated against influenza unless not permitted for medical reasons.  However, the fact that  Victoria and Queensland differ in that the flu vaccine is not mandatory for aged care workers in those states (Victoria only ‘recommends an aged care provider encourage workers be vaccinated against flu), the discrepancy “highlights the uncertainty that exists in declaring COVID-19 an inherent requirement of employment”, Ms Bowe added.

Tricky questions

Further questions exist around fulfilling WHS obligations to keep employees COVID-safe. For instance, employers considering asking customers and visitors for proof of vaccination before granting entry to their premises are recommended by SWA to seek advice first “as there may be privacy and discrimination issues that apply”.

It is little wonder that employers’ heads are spinning. When the Australian Human Resources Institute (AHRI) surveyed over 600 members in late January, 60 per cent found the lack of government directives on COVID-19 vaccination for organisations confusing. Almost 13 per cent of those surveyed were considering mandatory vaccination policies even while the majority of employers wait for a clearer picture from government.

Without clear and consistent guidelines “businesses risk an increase in claims by employees (such as unfair dismissal) and issues with organisational culture” according to AHRI CEO Sarah McCann-Bartlett.

No place like home

Working from home is just as hot a topic. The Fair Work Commission found only five per cent of workers sent to work at home during the pandemic now wished to return to the office full time – and only 35 per cent wanted to return on a part-time basis. Employers are now staring down the barrel of deciding who works from home, when and even if they should.

The bottom line is that if an employer can show they have a COVID-safe plan and that a certain position requires a worker to be in the office, then they have a right to deem an employee return to the physical office. Even so, they should be mindful of being seen to be “ordering” people back to work. From the human resources point of view, giving employees the peace of mind to WFH as they wish could be the best approach at a time people are nervous about sporadic COVID outbreaks. Employment lawyer Michael Byrnes from Swaab points out that either way, if a claim goes to the Fair Work Tribunal, a finding will come down to whether a direction to return to work was reasonable.

Open communication and negotiation between employer and employee is advised by human resources experts as a means of mitigating claims by disgruntled employees. Clear policies are advisable too despite no WHS requirement for workplaces to have a formal COVID vaccine policy.

“You should be consulting your workers and discovering their views, and then creating a relevant policy for your workplace,” said the Australian HR Institute’s general manager of people and culture Rosemary Guyatt.

The threat of a rise in discrimination claims is so real that British economist Nicholas Bloom, considered one of the world’s leading experts on remote work, has branded WFH a “time bomb for inequality”.

Bloom’s research revealed well over a decade ago workers at home were promoted at half the rate of their colleagues in the office – and he is not alone in expecting discrimination claims relating to not only this issue but also being underpaid and over-worked if WFH proliferates.

There is an upside though: Bloom says WFH augurs well for the growth of suburbs and rural areas, making them prime locations for companies to set up their offices of the future.