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COVID – 19: Vaccinations and the Workplace

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COVID – 19: Vaccinations and the Workplace

8 September 2021

Overview

With vaccination rates appearing to hold the key out of Australia’s (lock)down and enabling a safe return to work for the near 13,156,400 people currently employed in Australia, the question everyone is asking is – can vaccinations be mandated in the workplace?

Last month, the National Cabinet provided some clarity on the issue in a media statement released on 6 August. While it reiterated that Australia’s policy is voluntary vaccination, it shed some light on the ability of employers enforcing mandatory vaccination in the workplace.

“Businesses have a legal obligation to keep their workplaces safe and to eliminate or minimise so far as ‘reasonably practicable’ the risk of exposure to COVID-19.
In general, in the absence of a State or Territory public health order or a requirement in an employment contract or industrial instrument, an employer can only mandate that an employee be vaccinated through a lawful and reasonable direction.”

The upshot of this is that the decision will largely be left to employers to address with their employees, and employers will need to consider whether a direction to employees mandating vaccination is lawful and reasonable.

So,  can it be mandated?

In the Residential Aged Care Industry, it already has.

Following a decision of National Cabinet, from 17 September, residential aged care workers must have received their first vaccine dose.
There are some other high profile examples of companies mandating vaccinations:

  • SPC: a Victoria-based canned food processor, recently announced that they will mandate COVID-19 vaccinations for their employees, requiring all employees to be vaccinated by late November.
  • Qantas: Indicated front-line employees will need to be vaccinated by November 15.
  • Deakin University: Has flagged making vaccinations mandatory in 2022 for staff and students.

WA have also made it mandatory for their health workers. They will implement a staged approach focusing on the workers in the highest risk settings first:

  • The Chief Health Officer has approved new Health Worker (Restrictions on Access) Directions, which require mandatory vaccinations for the health workforce.
  • This will be implemented in a staged approach focusing first on workers in the highest risks settings.
  • The first set of workers will be required to have their first dose from October 1, to access tier one facilities [1].

Lawful and Reasonable

As directed by National Cabinet’s August 6 Statement, employers are encouraged to review guidance released by the Fair Work Ombudsman and Safe Work Australia to determine what is lawful and reasonable.

The Ombudsman’s updated guidance directs employers to assess whether a mandatory direction to employees to be vaccinated is lawful and reasonable, taking into consideration a number of factors including:

  • The nature of the workplace;
  • Extent of community transmission;
  • Employees circumstances and duties;
  • Vaccine availability;
  • Whether there is a legitimate reason for the employee for not being vaccinated (ie medical condition)

However, this list is not exhaustive, and should involve a case-by-case assessment bearing in mind any industry, legal, government or other updates as they arise.

What sort of workplaces can mandate it?

Where State and Territory health agencies make public health orders that require some workers to be vaccinated, for example, those considered to be working in high-risk workplaces, then such orders must be followed. Should a workplace fall within the scope of an order, they are likely entitled to mandate vaccination.

But in absence of a public health order, or other legislation, employers should follow guidance of the Ombudsman and Safe Work Australia.

The “Tiered” guidance of the Ombudsman, may provide some hints as to what sort of workplaces will see positive implementation.

  • Tier 1 work, where employees as part of their duties interact with people with an increased risk of being infected with coronavirus (for e.g. employees working in hotel quarantine or border control).
  • Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for e.g. employees working in health care or aged care).
  • Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
  • Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

Without making it express, there would seem to be a strong case for making vaccinations mandatory in tier 1 & 2 workplaces, some argument for tier 3, but harder to make the argument for tier 4.

How will it be enforced?

For employers looking to roll out the mandatory approach, appropriate planning should consider how it will be policed and enforced in the workplace.
Taking the recent mandate for the residential aged care industry as an example, evidence of vaccination may include:

  • a vaccination certificate or other evidence from a vaccine provider, or
  • an immunisation history statement which you can access from Medicare online or the Express Plus Medicare mobile app
  • a signed declaration, a statement of your vaccination history which you can request from the Australian Immunisation Register, or a record from a health practitioner.

Employers will need to consider what protocols they will follow should an employee refuse to provide evidence, or refuse to be vaccinated.

What next?

The decision to mandate workplace-wide vaccination cannot be made lightly and requires careful consideration.

Should employers take this route, careful drafting of contracts and workplace policies should ensue, bearing in mind situations where exemptions may apply, and other legislative instruments which may intersect, such as the Disability Discrimination Act 1992, and the General Protections provisions under the Fair Work Act 2009.

A well-planned and clearly communicated implementation strategy will be key, which should take into account vaccine availability, consultation with employees and potential solutions for those who may be exempted.

Case Study – Flu Vaccines

The recent Flu Vaccination cases considered by the Fair Work Commission may serve as early indication to how mandatory vaccination cases will be dealt with in the wake of Covid-19.

  • In Maria Corazon Glover v Ozcare [2021] FWC 2989, the direction to an employee to receive the flu vaccine, who worked in close proximity with elderly clients, was considered lawful and reasonable. The dismissal of the employee for refusing this direction was not considered unfair, taking into account the high risk setting of aged care.
  • Similarly, in Barber v Goodstart Early Learning [2021] FWC 2156, the employer implemented a mandatory influenza vaccination policy which included an exemption where medical grounds applied. While the applicant claimed certain medical grounds including a sensitive immune system, the Commission was not satisfied on the evidence presented.The employer’s direction arising from the mandatory policy was considered lawful and reasonable, taking into account the health and safety obligations under the Act in a childcare environment, government advice in the industry encouraging vaccination and the primary function of the employer in the care of children, among other factors.
  • However, with regards to a valid basis of dismissal, the Commission was not satisfied with the Employer’s claim that it formed part of the inherent requirements of the employee’s role, rather “where [the Employee] has successfully performed her role for many years, it is difficult to see how the policy is not simply seeking to artificially impose an inherent requirement upon her.”

Key Takeaways:

  • Where high risk industries are concerned, with close proximity between employees and vulnerable people (such as aged care and child care), employers may have stronger grounds in support of mandatory vaccination.
  • Employers will likely have a stronger claim where public health orders or overarching legal obligations exist.
  • Medical grounds as a potential exemption should be considered, but employees should be prepared to present substantial medical evidence in support. It may then be open to employers to challenge evidence provided, particularly in situations where such evidence may not relate to public health advice surrounding medical contraindications.

 

 

Disclaimer: This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.

[1]  https://www.mediastatements.wa.gov.au/Pages/McGowan/2021/09/COVID-19-vaccination-to-become-mandatory-for-Western-Australian-health-care-workers.aspx

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