4 March 2021 posted by Recovery Partners

With shipments of COVID-19 vaccines now arriving on Australian shores, employers are asking questions about how to manage this issue with staff. With the Australian Government aiming for a 95% community uptake rate, the vaccination rollout program aims to make the vaccine available to any Australian who wants it. But, what if you have employees who don’t want to get vaccinated? Are employers allowed to insist? Is there a legal obligation for employers to ensure staff are vaccinated so their colleagues and customers aren’t exposed to unnecessary risk?

Here’s what you need to know:

The Federal Government has not made the vaccine compulsory

While the Australian Government has not made vaccination compulsory, they are strongly encouraging anyone who can to get the COVID-19 vaccination and states and territories may issue compulsory directives through public health orders. This may be for workers in particular industries, categories of workers that are especially at risk, or types of work that expose others to risk. The Australian Government has also hinted that the vaccination may be required for people entering or leaving the country and Qantas CEO Alan Joyce has flagged that the airline will insist passengers be vaccinated as a condition of international travel. More information can be found in the Australian Government COVID-19 Vaccination Policy. 

The Australian Health Protection Principal Committee (AHPPC) is the key decision-making committee for health emergencies in Australia. The AHPPC is made up of state and territory Chief Health Officers and is chaired by the Australian Chief Medical Officer, Professor Paul Kelly. This organisation will be the main source of advice about the COVID-19 vaccination program and the recommendations for workers in your industry, so it’s a good idea to keep an eye on the website and your industry news outlets.

Safe Work Australia also has a guide to COVID-19 vaccinations for particular industries that can be found here.

Can employers make employees get the COVID-19 vaccine?

At the moment, there are no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against COVID-19, although such arrangements do already exist in some industries. Employers can still potentially make the vaccine compulsory for their staff, but there are a number of caveats and questions to consider:

  • Is it lawful and reasonable?
  • Is it practical/practicable?
  • Does it violate any applicable Human Rights charters?
  • What risks are involved for the worker and others?
  • Are vaccination alternatives available and sufficient? (E.g., The use of PPE, social distancing measures and rigorous cleaning procedures to lower the risk of contact transmission)
  • Is it discriminatory? This may be especially relevant if an individual declines to be vaccinated on religious, cultural, or moral/ethical grounds.
  • Are there medical reasons for an employee to refuse a COVID-19 vaccination?
  • Is it a contractual obligation?
  • What Federal and/or State Government directives are currently in place for workers and/or their industries or other circumstances of work?
  • Is vaccination necessary in order for the individual to do their job?
  • What other infection control measures are in place?
  • What do WHS regulatory bodies suggest?

If employers insist that staff get vaccinated as a condition of their employment, this will be a delicate balancing act between the nature of the work, work environments and risks to others with the reasons an employee has for refusing the vaccine. From a Work Health and Safety perspective, employers do have a duty to minimise the risk of exposure to COVID-19 in the workplace, under model Work Health and Safety laws. So, if they can reasonably argue that a mandatory vaccination policy is in alignment with this obligation, it may be legally permissible. As it stands, this is an area of law that will likely be tested in the coming months.

What precedents are there?

Two recent unfair dismissal cases taken to the federal Fair Work Commission in 2020 involved employers making the influenza vaccination a requirement, and employees losing their jobs for refusing. In the first case, Goodstart Early Learning, a large Australian early childhood education and care operator, required employees to get influenza vaccinations as they believed this was part of their duty of care to the children in Goodstart Centres. When childcare worker Nicole Arnold refused to get the vaccine but provided no medical grounds for doing so, she was dismissed. Commissioner Ingrid Asbury ruled in favour of Goodstart, suggesting that their vaccination policy was reasonable given the context of providing care to children.

A second case involves the Ozcare care assistant Maria Glover, who declined to get the free annual influenza vaccination provided by Ozcare as she said she had allergies and had also experienced an adverse reaction to a flu shot in childhood. Ozcare made influenza vaccinations mandatory for all employees in its residential aged care facilities in April of 2020 because of the increased risk to clients who caught the flu and went on to contract COVID-19. While a final determination has not yet been made in this case, both these examples illustrate the pertinence of the employment context and the particular vulnerability of those who might be affected by an employee’s decision to refuse vaccination (such as children and aged care residents).

Watch this space…

While it remains to be seen whether the COVID-19 vaccine will be mandated in certain populations in Australia, employers can still make sure they are doing everything possible to mitigate the risks of COVID-19 transmission in their workplaces now. Here are some things to consider:

  • If you haven’t already done one, a risk assessment is a useful and efficient way to determine what control measures can be implemented effectively in your work environments
  • Consultation with your employees can help ensure a respectful agreement is reached about WHS and COVID-19 vaccinations
  • A COVID-19 Policy may help enshrine your workplace practices and procedures and give employees a framework for compliance.

 

Recovery Partners can assist with all of these measures and we’re happy to discuss your circumstances at any time. Get in touch by calling 1300 647 789 or emailing enquiries@rrp.com.au.

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Disclaimer – these articles are provided to supply general safety information to people responsible for OHS in their organisation. They are general in nature and do not substitute for legal and/or professional advice. We always suggest that organisations obtain information specific to their needs. Additional information can be found at www.workcover.nsw.au