Mandatory Vaccinations - the #1 Mistake Employers Need to Avoid

Mandatory vaccinations have become the main topic of discussion within board rooms since the announcement of Public Health Orders and proposed drafts throughout Australian states and territories.

The catch cry of “no jab, no job” has led many to seek legal advice as to whether they can mandate a workplace vaccination, which often raises further questions. Unfortunately, the first mistake I see is management and various experts make is to lump employees into two categories; the pro-vaxxers and the anti-vaxxers. As a result, they are failing to identify and help an important third group, the vaccine-hesitant.

Even recent judgements, including the highly controversial dissenting decision by Deputy Commissioner Dean in the Fair Work Commission and recent advice I have seen from the Fair Work Ombudsman, fails to recognise this group. Unfortunately, these judgements and advice from the Fair Work regulator are skipping over crucial steps and going straight to performance management in the first instance.?

This is wrong.

The vast majority of Australian employers do not wish to fire their staff and do not have to, as most of their unvaccinated staff are vaccine hesitant and not antivaxers.

This article will show you how to differentiate between the vaccine-hesitant and provide tips on managing the vaccine-hesitant if your organisation is considering mandating workplace vaccinations.

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The Anti-Vaxxer

Anti-vaxxers are those that generally believe the COVID-19 vaccination is a conspiracy of some form. The variety of conspiracy theories are vast. While wilder theories such as 5G cellphone towers spreading COVID capture the headlines, the predominant theories gaining ground right now are that workplace vaccination mandates, public health orders (PHOs) are a gateway to dictatorship as well as a global agenda to depopulate the planet. Central to their argument is that PHO’s are a breach of human rights.?

The challenge in engaging in debate with anti-vaxxers is their conviction to irrational and unprovable claims in order to move their own agenda forward. They have jumped onto the COVID-19 mandated vaccination argument and are at the centre of much misinformation, of which, social media is attempting to identify and shut down. Youtube now has a COVID-19 misinformation policy as part of their Terms of Service. There is a lot of material on this; however, before I move on, we need to recognise anti-vaxxers are unlikely to accept counter-evidence that conflicts with their beliefs. e.g. empirical such as a scientific study or clinical trial data from the source.

?The Vaccine Hesitant

The vaccine-hesitant are not anti-vaxxers. This is an important distinction. Being painted with the same brush is insulting and stigmatising. You may find they had all their shots in the past, do not believe in conspiracy theories, and prior to COVID-19, did not support the anti-vaxxer movement. Some have moved over to the anti-vaxxer movement as a result of the “you are either pro or anti-vax” stance by employers, unions, employer groups and lawyers. In addition, due to previous negative experiences with the health system and some health practitioners, many do not trust the health profession. Recent data suggests that while health practitioners enjoy the highest level of public trust among professional groups, it is still just 6 in 10 individuals.

Meaning that, 40% of the population will not be convinced to get vaccinated by “trust us” or “it’s safe” information by governments, the media or medical practitioners.?

In my own case, I have a saying, “In God I trust, everybody else, bring me data.” And Health Practitioners are no exception to this rule, especially when it comes to COVID-19 and clinical trials. Rather than talk about others who have had bad experiences, let me tell you about mine.?

How I overcame vaccine hesitancy

Nineteen years ago, when serving in the Royal Australian Air Force, I developed compartment syndrome like most serving members. This condition originates from all the marching and activity in military boots, whereby my shin muscles were not supplying enough blood to my feet, resulting in numbness in the front of my legs anytime I did physical activity. I ended up having a relatively common surgery for the condition where the sheath of muscle in front of my shin was opened from knee to ankle allowing more blood flow and solving the problem. However, the surgeon nicked a nerve, and even now, nineteen years later, I have permanent numbness in my right leg between my knee and ankle in the muscle on the front of my shin.?

The mistake by the surgeon is not my reason for distrust; it was the two years of medical appointments after the surgery where several “experts”, including the surgeon himself, told me there were no issues, and it was just latent anesthetic causing the numbness. The fact I was lied to for two years about a mistake made by the surgeon is the cause of my distrust. When it came to COVID-19, as I get asthma, I wanted to ensure clinical trials demonstrated no issues for those with asthma. After sourcing clinical trial data, I was satisfied that the vaccine I would be taking (Pfizer) was safe, and as a result, I was double vaccinated by the end of August. The point is that I overcame my mistrust in the medical profession via research that I was able to source pertaining to clinical trials.

A Mother's Decision: Vaccinate or Not?

In recent months, when regularly reviewing clinical trial data, what also became apparent to me was the lack of data for certain groups, some of which was acknowledged by Pfizer themselves, namely for pregnant women. Pfizer stated on their webpage, “we simply forgot pregnant women during our initial trials.” As a result, many who were pregnant or contemplating pregnancy have been unfairly thrown into the cohort of anti-vaxxer when they objected to mandated workplace vaccinations. Pfizer has since completed their first pregnant clinical trial between July and September this year.

That Fair Work Commission decision

An unfortunate recent example of the vaccine-hesitant being labelled as an anti-vaxxer may have been the case made famous by Deputy President Dean dissenting decision from the Fair Work Commission. In this case, DP Dean listed her personal views of vaccination within an unfair dismissal appeal that was unsuccessful. What I found most troubling about the case is that after reading the original application for unfair dismissal, and the first half of the appeal (which is largely ignored by online media) is that the applicant was, in all likelihood, vaccine-hesitant and not an anti-vaxxer. The applicant’s original dismissal occurred when she refused to get vaccinated and claimed that her reluctance to comply with the workplace direction was due to a prior adverse reaction to an Astrazeneca flu shot.?

Disappointingly, the applicant's employer made no attempt to work through her medical exemption or vaccination concerns, including working from home options (she was a receptionist, not a frontline health care worker), or the possibility of working with her M.D on a safe vaccination option. Instead, her medical exemption (whilst how it was obtained was questionable) was not recognised by the Commissioner in the original case, whom, along with two of the three Commissioners in her appeal, labelled the applicant as an anti-vaxxer and stated: “she held a broader anti-vaccination position.” This position is traced to a letter written by the applicant to her employer in response to a workplace direction to get vaccinated. When examining the letter written by the applicant (the letter is quoted line by line in each judgement), there is, in my opinion, no justification for this statement, and it shows how little the Commissioners understood her reasonable challenges to her employer. These include the issue of financial loss in relation to an adverse reaction, a highly relevant point as many Directors are not aware that manufacturers of vaccines are indemnified against prosecution for adverse reactions, so be sure to speak to your insurance agent about this risk.

The applicant requested her employer supply her with scientific evidence that the vaccine in question was not harmful. Again, there is nothing unreasonable about this request yet the Commission viewed this as anit-vaxxer.

The applicant also stated she had a flu vaccination in the past, which is by definition, not an anti-vaxxer stance.

Therefore, not only is there a lack of evidence to substantiate the Commissioner’s claim that the applicant is an anti-vaxxer, but rather, there is evidence that supports the applicant is both vaccine hesitant and not an anti-vaxxer.

?Here is the reference if you want to check out the appeal yourself https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb6015.htm

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What should employers be doing

My recommendations and thoughts to all employers are:

1. Be sure to break up your approach to respect and include the vaccine-hesitant.
2. Ensure you discuss options for the vaccine-hesitant in addition to working through their concerns with them. By ‘work through’, I do not mean send them to HR and start a PIP or PMP. This is, as it always should be, a last resort when it comes to the vaccine-hesitant.
3. Identify if they are a forward or a rear-facing employee, if they are rear-facing, you should already have the tech and policies in place to support flexible working arrangements. If you do not, you should already have their employment contract stipulating they are front facing, and therefore, flexible working is not an option (i.e. cashiers, waiters etc). Additionally, they will be at an increased risk of COVID19 infection than rear facing employees (from staff AND customers and environment) and should already have a PCBU physical safety framework tailored accordingly.
4. Do all you can to track down studies and research that directly address their vaccine hesitancy concerns and where possible (with their consent) work with their Medical Professional and/or specialists as to their specific set of circumstances. Remember, under the Discrimination Act, if an employee has a medical or other (including disability) recognised condition, their employment is protected from adverse action, including termination.
5. Understand that the vaccine-hesitant typically do not trust HR (as most workforces do not), nor the medical profession, which is understandable when the message is simply “trust us” with no supporting information. Be sure to take the time to build rapport, demonstrate genuine concern for their apprehension and go that extra step to help them find the research and assurance they require. Remember, by research this excludes public directions from a state or Federal Department of Health; as this is nothing more than a notice and should not be viewed as a source for assurance. If there are state or federal health notices, look for supporting data.
6. Remember, to date, most of the medical profession and Governments have been relying on the “trust us” approach; those that do trust these groups were the first 50% vaccinated, we are now into the vaccine-hesitant and anti-vaxxers who do not trust, but may be open to evidence in order to gain assurance. So the message of “trust us” or “it's safe” will no longer work, and it is up to you to sort out the two groups, and tailor your responses accordingly.

Click the link below to book your place in our two day workshop as I, along with other experts show employers how to manage their workplace vaccination transition risk for Fair Work, Safety and Insurance. We will also show you how to counter misinformation and what is working to maximise voluntary workplace vaccinations.

Mandating COVID-19 Workplace Vaccinations: How to Get it Right - Interactive Web-Based Workshop