Constructing a COVID-19 solution

20 September 2021

Fay Calderone, Partner, Hall & Willcox |
Jenine Waters, National Leader, People Advisory |
Elysia Rothwell, Partner, Audit & Assurance |
Maryanne Carter, Partner, People Advisory |

BDO in Australia recently hosted a virtual roundtable with leading construction operators to address concerns around COVID-19 Public Health Orders, mandating vaccinations and other potential work, health and safety consequences. It can be difficult to navigate this rapidly changing landscape so we’ve outlined some key themes you should consider in your decision making process during these uncertain times.

Dealing with new and changing rules

When new government directives around COVID-19 are announced, it can be challenging to determine your next steps. While you may want to act quickly and proactively, it's important to take a moment and determine the flow-on effects of your decisions on other areas of the business. It's also vital to assess the urgency of your actions against where it sits within your overarching compliance framework.

Communicating with your workforce

With government guidelines continually changing and debate around mandatory COVID-19 vaccinations ongoing, now is the time to focus on leadership, consultation and communication with your employees. When developing a solution to a workplace issue such as mandatory vaccinations, strategies that gain the most traction take a consultative approach, where communication, information and transparency go hand-in-hand. Establish effective communication by providing open and continuous, two-way communication to help your workforce understand your company’s ‘higher purpose’ and the reasons behind your actions.

Leadership teams can be effective advocates for driving vaccination rates so be open about your intentions, keep your employees updated and do your best to answer their questions.

Remember, your primary focus should be keeping workers informed during a time where misinformation and uncertainty persists.

To mandate or not - what are the risks?

With varying levels of Public Health Orders in place across the country, it can be difficult to decide the best directive to provide employees regarding vaccinations.   

While some larger organisations may be prepared to run the gauntlet and implement mandatory vaccination, most will take a cooperative approach, balancing their commercial imperative with the best interests of their workforce, dealing with exceptions as they arise.

While there are risks that come with mandating vaccines, there are also risks associated with not mandating.

If you mandate, you could be prosecuted or liable if someone reacts to the vaccine. Conversely, if you don't mandate and your site has a COVID-19 case, you can be equally accountable through workers compensation.

While the prospect of being prosecuted for not mandating vaccines is low, especially if you have other processes such as testing and standing down in place, state regulators are yet to issue statements of regulatory intent to confirm this.

It is also important to keep compliance obligations in mind when implementing new measures. While Public Health Orders are at the top of the hierarchy with workers' health and safety compliance, employers have an overriding duty to ensure workers, and those in the workplace, are safe.

Beyond health orders, in certain circumstances where risk of COVID-19 transmission is heightened, you can issue lawful and reasonable directions. Keep in mind, when implementing a mandate, rigorous application of the policy is essential to demonstrate why the direction is lawful and reasonable.

Union involvement in your decision making can add an extra layer of complexity and consultation obligations in order to comply with Enterprise Agreements. How you engage will be critical to gain the trust of the workforce and their representatives.

It’s also important to remember, if you mandate or encourage the vaccine when not under government regulations, it becomes a connection to employment. If you take action above what's required under Public Health Order and there is an adverse consequence, workers compensation provisions will come into effect.

Can I ask people their vaccination status?

This is a question of consent. If you’re asking people to disclose their vaccination status, ensure you let them know why you are asking, how you’ll collect the information and what you intend to do with it. It’s also best to incorporate consent into your policies and employment agreements and then deal with exceptions as they arise.

Can I incentivise vaccines?

While the short answer is yes, it's important to be aware of the Therapeutic Goods Administration guidelines. When considering incentivising vaccination, you must not advocate a particular vaccine brand and you can only provide incentives once the employee is fully vaccinated.

What about unvaccinated employees?

You may find some of your employees will feel uncomfortable working closely with their unvaccinated colleagues. While staff should be encouraged to raise their concerns, from a legal perspective this is not enough to allow you to mandate vaccinations, particularly if other on-site control measures are possible.

Instead, it's important to listen and respond to any fears or issues raised and continue to implement significant control measures to ensure a safe workplace.

Train your managers to have the right conversations

With the likelihood some of your employees will remain unvaccinated, it’s important managers are prepared for potentially difficult conversations, especially when dealing with performance issues. If an unvaccinated employee is let go, they may claim their vaccination status drove the decision, creating the perfect storm for litigation. It is essential your managers are armed with the knowledge required to have these discussions, they act quickly on any performance issues and document all employee conversations.

Contact us

For further information on navigating your human resources requirements during COVID-19, talk to one of our people advisory consultants today.