Debate is raging as to whether COVID-19 vaccinations should be made mandatory for employees in certain industries, and who should be responsible for making the call.

But, if the decision comes down to small business owners, they must be mindful of what they’re signing up for, and what liabilities they could be opening themselves up to.

In New South Wales, at least, there’s legislation in the works that could make employers liable if their employee has an adverse reaction to the jab.

On Friday, Prime Minister Scott Morrison placed the onus on businesses, essentially saying employers can make vaccinations mandatory for their employees, but that the governments are not going to step in.

“It is not the intention of the Commonwealth, nor of the states and territories, to create any special laws in these areas,” he said in a press conference after the National Cabinet meeting.

While noting that any requirement would be subject to discrimination laws and other legal considerations, Morrison suggested businesses are able to mandate vaccinations for employees, particularly those in public-facing roles.

Ultimately, the decision is up to businesses themselves, he said.

“I’m sure employers who are considering these things would be also taking their own advice on those matters,” he said.

However, Business Council of Australia chief executive Jennifer Westacott has countered this, saying state governments should be leading this conversation. Businesses have enough on their plates already.

“We cannot leave this to individual employers who need to have a laser focus on keeping their people in jobs rather than seeking legal advice,” Westacott reportedly said.

Any mandatory vaccine measures should be targeted to high-risk areas in which unvaccinated people could “dramatically compromise our quarantine and containment systems,” she said.

“We should also consider other high-risk areas such as meat processing, manufacturing and healthcare so we can keep these critical industries open.”

Burden and responsibility

In NSW, however, this debate is moving beyond the hypothetical. Over the weekend Gladys Berejilian announced some construction work would be able to recommence, but workers living in the LGAs particularly affected by COVID-19 will only be able to attend sites if they have had at least one dose of a vaccine and returned a negative test.

It’s the first case of a state government incentivising people to get the jab, by offering the prospect a return to work and income.

It also raises questions for employers in the sector.

Speaking to SmartCompany, Fay Calderone, partner at law firm Hall & Wilcox, says it is not currently clear whether or not this is a public health order from the state government.

Therefore, it’s not clear whether it’s mandated by the government, and something either an employer or an employee can be held liable for.

She also agrees that putting mandatory vaccination decisions in the hands of employers places “quite a burden” on them.

But at the same time, she acknowledges that blanket policies might not be the best way to go, either. There’s a little more nuance here, and there needs to be different considerations for various industries, workplaces and circumstances — for example whether the business is in a hotspot, or a sector with an increased risk at that time.

“I appreciate that in order to have all of those considerations it is difficult to create blanket overriding rules, Calderone says.

“But the onus that puts on business, particularly smaller businesses to navigate is difficult,” she says, particularly when we don’t have test cases to refer to or much clear guidance.

Up until now, the government guidance has, if anything, been leaning against mandatory vaccination, she notes.

Now, that’s starting to change.

Who’s liable for what?

But what small business owners really need is clear guidance, and at the moment they’re not getting it.

“Employment law is a federal responsibility,” Calderone says.

“But then we’ve got all the public health orders and the directives being made at a state level, then even within those states there are circumstances with heightened risk.”

More troublingly, she points to legislation being tabled in New South Wales that would make employers liable for any injuries or adverse effects caused by the vaccine, if it was mandatory for them to return to work.

“It squarely puts the risk on the employer for mandating anything,” Calderone says.

For her, that somewhat goes against the broader public policy reasoning to promote vaccination. And it puts employers in a difficult position.

Obviously they want to get back to work, and they want to offer their workers their roles back. But, as we’ve seen in New South Wales, that could mean mandatory vaccination, which means risk around fair treatment of employees, risk around what happens if an employee is not vaccinated, and risk of liability if a worker suffers adverse effects.

“This whole pandemic has shown us that interests are aligned,” Calderone says.

Both employers and employees want to get back to business.

It comes down to a question of carrot or stick. If you mandate vaccination, what happens if employees say no? That will only lead to risk and liabilities, she says,

On the other hand, if you have a policy that provides incentives and encouragement, plus a clear communication strategy and policies for what happens if an employee becomes unwell, “they can’t be criticised or indeed liable for giving incentive”, she adds.

“For a small business, my personal view is that, until we have more well-developed guidance, they’re better off having clear comms and policies encouraging it rather than mandating it.”

This story originally appeared on SmartCompany, and has been republished with permission.