It appears we are coming to the maintenance side of Covid, as we now understand we may be living with the virus indefinitely. The conversation now seems to be moving to vaccination, presenting a whole new set of problems for the world.
Employment and services are impacted by vaccination resistance because it seems vaccination is the only solution. Real estate is a service industry and the ‘product’ is the largest investment most people will make in their lives. While we have the technology to facilitate transactions, people still want to see, touch, smell, and feel for the property they are purchasing or leasing. Real estate transactions are high ‘contact’ arenas where people are indoors, touch surfaces, and attend open inspections and bidding at auctions. So, many in the industry want mandatory vaccination.
On the surface vaccination is a no-brainer – get a vaccination or stay away. Others are grappling with issues that may appear minor but are very significant to them. It is helpful to understand what this hesitance is. As many are becoming increasingly frustrated with the resistance to vaccination creating perspective helps. Some of the problems that have been identified include:
- fear of needles;
- fertility being affected;
- covid vaccines are relatively new and have little historic data;
- fear that an existing medical condition creates vulnerability;
- impaired immunity concerns;
- distrust in government;
- complacency and
This is not a complete list but fears need to be acknowledged so government, medical practitioners and legislators can create strategies to alleviate concerns. To complicate the resistance further the number and complexity of vaccines have grown as has the confusion and misperception. Add an increasingly fractured media environment and a self-publishing alternative facts world and it’s a mess. A seemingly endless list of obstacles for authorities and the law to negotiate.
Many want businesses to have vaccination mandatory to protect the vaccinated and to get people out and about again. However, for a court to consider it ‘reasonable’ for an employer to mandate COVID-19 vaccinations it is likely to be highly fact-dependent. When considering the workplace and the employee’s individual circumstances the court may consider information such as:
- The existence and scope of any relevant public health orders.
- Health and safety issues and the reasons advanced in favour of the mandatory COVID-19 vaccine requirement.
- Issues relating to an employee’s disability or medical condition.
- The nature and extent of the disadvantage resulting from the imposition of the proposed imposition of the mandatory COVID-19 vaccine requirement.
- The feasibility of overcoming or mitigating any disadvantage to the employee by the mandatory COVID-19 vaccine requirement.
- Whether the disadvantage to the employee is proportionate to the result sought by the employer.
- The nature of the work performed by the employee.
- Whether the employee has close contact with people who are most vulnerable to severe COVID-19 health impacts. For example, people working in aged care, disability care, health care, people over 60, or people with respiratory conditions.
- Whether the employee interacts with people with an elevated risk of being infected with COVID-19. For example, medical professionals, flight crew, border control, or hotel quarantine workers.
- The incidence, severity and distribution of COVID-19 in the areas where the work is undertaken.
- The availability of the vaccine.
- Advice from medical and work health and safety bodies such as the Australian Health Protection Principal Committee and Safe Work Australia about COVID-19 and COVID-19 vaccinations at the relevant times, including duties owed by employers to staff and customers under work health and safety laws.
- Whether any alternative methods might reasonably achieve the employer’s objective without recourse to the mandatory COVID-19 vaccine requirement, such as:
- testing regimes
- remote work
- physical distancing
- personal protective equipment.
The Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA) make it unlawful to discriminate on the grounds of pregnancy, disability and age in many areas of public life, including in employment. ‘Disability’ is broadly defined in the DDA and includes past, present and future disabilities, as well as imputed disabilities.
The SDA, the DDA, the ADA explicitly place the burden of proving ‘reasonableness’ on the person who requires compliance with the requirement or condition — in this case, the employer. So what employer will take this on?
Australians love real estate and buying and leasing property is a primary need. Disparaging those that are resisting vaccination delaying us further seems valid. However, in the end, perhaps recognising concern and being strategic may be more important than citing facts and statistics.