Medical experts consider that the Delta strain is up to 40% more contagious than the previous strain of COVID-19, which significantly elevates the amount of risk to workers in sectors like health care.
On 28 June 2021, and largely in response to the impact of the Delta strain, the National Cabinet announced that COVID-19 vaccinations are to be mandated for residential aged care workers as a condition of working in an aged care facility. The National Cabinet has also mandated COVID-19 vaccines and tests for all quarantine workers, and is considering introducing similar safety requirements for several other high-risk sectors (such as aviation).
Outside of these specific industries, Federal and State governments have indicated that the majority of organisations will be unable to require their workers to receive the COVID-19 vaccine. Guidance released by Safe Work Australia and the Fair Work Ombudsman has also emphasised that any mandatory vaccination requirement must be assessed on a case by case basis. Most organisations should, at least at this stage, assume that they will not be able to require their workers to be vaccinated. The availability of vaccines (particularly Pfizer) for those under 60 will also impede organisations wishing to proceed to implement a compulsory vaccination policy.
However, there may be certain circumstances where organisations may be able to require particular workers to be vaccinated against COVID-19, particularly where those organisations operate in high-risk industries such as clinical healthcare settings.
Recent Fair Work Commission (Commission) decisions provide some guidance to employers about the factors that may justify a mandatory vaccination policy (although in the context of influenza rather than COVID-19). We take a closer look at these cases later in this article and draw parallels with the clinical and healthcare settings.
The weight to be given to various factors in decision making is highly dynamic as the situation evolves. Both the risks posed by COVID-19 infections in the community, and data around the risks of the available vaccinations, fluctuates. This means balancing risks, and determining reasonable risk minimisation strategies, must be an ongoing process.
Balancing discrimination risks with work, health and safety obligations
Anti-discrimination laws prohibit discrimination on the basis of a number of protected attributes or prohibited grounds, including disability, age, pregnancy, race and religion. If an employee refuses a direction to be vaccinated on the basis of such an attribute (for example, because of a medical condition for which the vaccine is contra-indicated such as breastfeeding), adverse treatment of the worker as a result of that refusal may amount to unlawful discrimination (unless the direction is reasonable in the circumstances).
On the other hand, under work health and safety laws, organisations and businesses must take all reasonably practicable steps to ensure the safety of workers and others impacted by their business. In some healthcare and clinical settings it may be reasonable to impose the requirement for specific front line staff to be vaccinated against COVID-19 (with appropriate exemptions).
The concept of reasonableness is central to whether a requirement to be vaccinated constitutes unlawful discrimination. Each setting will need to be considered on its individual facts. However, for example, a mandatory vaccination policy may be considered reasonable in respect of certain front line workers who are involved in administering the vaccine, especially where they are involved in the care of vulnerable populations. In particular, the following factors could assist healthcare providers to demonstrate the reasonableness of such a requirement:
- Doctors visit multiple aged-care homes and have close contact with a large number of vulnerable patients, many of whom are likely to be more susceptible to the most severe effects of COVID-19.
- On 9 March 2021 the Australian Health Practitioner Regulation Agency (AHPRA) and National Health Practitioner Boards issued a joint directive “strongly encouraging” all registered health practitioners to receive the vaccine unless medically contraindicated. This guidance is consistent with the Codes of Conduct that govern registered health practitioners which provide that practitioners have a responsibility to participate in efforts to promote community health and disease prevention, which in the case of COVID-19, includes vaccination.
- The policy rationale for this position is that vaccination will achieve the highest possible level of immunity across the community and will provide doctors with protection if exposed to COVID-19.
- The present lack of availability of other ways to achieve these objectives.
- The possible negative influence on public confidence in the vaccine roll-out where doctors administering the vaccine are not themselves vaccinated.
- “At home” visits, where the ability to control the cleanliness/sterilisation of the work environment is reduced.
However, we consider it less likely that organisations will be able to impose a mandatory vaccination requirement on those workers who do not deliver front line healthcare (such as those who work in an office).
The exact nature of the clinical work being performed by workers will also need to be considered. For example, within a radiology practice, doctors performing interventions in close contact with patients (many of who will have serious conditions) for an extended period of time, will provide a stronger basis for compulsory vaccination than those doctors reporting on scans without patient contact. Further, the basis for requiring the vaccination should be enhanced in situations where practitioners see patients with conditions which impair their immune system, or affect lung function.
The risks associated with available vaccines must also be considered. Mandating vaccination may potentially subject workers to side effects, which may be used in a claim against the employer. The relative risks of spreading COVID-19 linked to clinical services, against the risks of the vaccination itself on workers, need to be carefully balanced using the best available data. What is “reasonable” is likely to shift as the information, and level of community transmission, moves over time.
Any requirement for workers to be vaccinated should be subject to reasonable exemptions in order to mitigate the risk of claims. For example, allowances should be granted to workers with a medical contraindication to vaccination. This may mean that if a front-line practitioner has an evidenced based medical reason for refusing the vaccine (such as an underlying medical condition for which it is established the vaccine is contra-indicated) the employer should, where possible, seek alternative duties for that person.
AHPRA has also stated that if a registered health practitioner has a conscientious objection to receiving, authorising, prescribing or administering the COVID-19 vaccine, they must inform their employer and relevant colleagues of their objection as soon as reasonably practicable . The employer will then need to consider, on a case by case basis, whether it is reasonable to enforce the mandatory vaccination direction in respect of this employee.
An organisation’s ability to direct its contractors to receive the COVID-19 vaccination will largely depend on the terms of the agreement between the organisation and the contractor.
However, the same anti-discrimination issues will be relevant and so organisations should impose this requirement only where it is “reasonable” to do so having regard to the nature of the role performed by the contractor.
Providing proof of vaccination
If organisations impose a requirement for particular employees or contractors to be vaccinated, then it should require those workers to provide confirmation or evidence that this has occurred. Organisations will need to consider, and make clear to those workers, the evidence this is acceptable.
Organisations will need to ensure that they comply with all relevant obligations under privacy laws in respect of their collection, storage and use of information (including sensitive or personal information) such as information evidencing worker vaccinations and any underlying medical conditions which prevent such vaccination.
Dealing with refusals
The appropriate response to any individual who refuses a direction to receive the vaccination will depend on all of the circumstances, including the reason (if any) for the refusal. Where a worker refuses the direction without providing a legitimate reason, this may provide a basis for disciplinary action. However, disciplinary action (particularly termination of employment) will only be defensible to the extent that the original direction to be vaccinated was reasonable and lawful.
Clearly, this is a developing and largely untested space. Issues of reasonableness will need to be considered on an ongoing basis and in light of the best available medical evidence and data, which will also include assessments of the efficacy and risks of the COVID-19 vaccines.
FWC rulings on mandatory flu vaccinations: Bou-Jamie Barber v Goodstart Early Learning; Jennifer Kimber v Sapphire Coast Community Aged Care Ltd; Maria Corazon Glover v Ozcare
In these decisions, the Commission considered the validity and application of mandatory influenza vaccination policies in the child care and aged care sectors.
The Commission ruled in favour of the mandatory vaccination policies, and confirmed that an employee’s failure to comply with the policy or demonstrate a legitimate medical exception constituted a valid reason for dismissal.
However, employers should exercise caution as the decisions are not authority for mandating COVID-19 vaccinations in the workplace. In at least one of these decisions, the Commission cautioned that its decision should not be applied to flu vaccination policies in different industries, or to employees with different circumstances to those in the specific case. It is also important to note that these decisions considered liability in the context of the unfair dismissal jurisdiction of the Fair Work Act 2009 (Cth) and employer liability in other areas (including under anti-discrimination legislation) remains largely untested.
These decisions provide guidance to employers about how to improve the likelihood that a mandatory vaccination policy may be lawful.
1. Undertake a legal and logical analysis of the risks and hazards in the workplace
Under the Work Health and Safety Act 2011, employers in NSW have a duty to ensure, so far as reasonably practicable, the health and safety of all their employees and others affected by their work. Similar obligations apply in Victoria under the Occupational Health and Safety Act 2004.child care providers have obligations to ensure not only the health and safety of their employees but also that of the children under their care. These include the obligation to prevent the spread of infectious disease at childcare centres, and the obligation to have policies and procedures dealing with infectious disease.
The Commission found that it was “not only logical but necessary” for the employer, Goodstart, to have clear and stringent procedures in place to enhance and ensure safety, and to mitigate potential legal liabilities for the transmission of infectious diseases in the workplace.
Employers in the aged care, clinical care and healthcare sectors have similar statutory obligations to their employees and the vulnerable people under their care. The levels of risk required to be mitigated by employers would be similarly high, as the people under their care often also have compromised immune systems.
2. Consider alternative methods for managing those risks before adopting a mandatory vaccination policy
Before considering a mandatory vaccination policy in the workplace, employers should consider alternative methods of managing COVID-19 risks such as PPE and social distancing. In Goodstart, the Commission accepted submissions that alternative methods of disease prevention (such as social distancing and strictly-enforced hygiene controls) are not practicable in a childcare environment. Vaccination also provides the additional benefit of generating some herd immunity in the early learning centres, which would be especially effective in protecting the children in Goodstart’s care who are too young to be vaccinated.
Work environments in the clinical care and healthcare sectors would likely carry similar practical implications, especially regarding the shortages of PPE and the herd immunity benefits provided by mass vaccination of employees. However, employers should carefully consider alternative methods of disease prevention before implementing a mandatory vaccination policy.
3. Employers may expand their mandatory vaccination policy in the workplace beyond the scope of government public health orders
In Ozcare, an aged care provider imposed a policy that required all workers that provide in-home care to be vaccinated against influenza as a condition of their continued employment. This was beyond the scope of the State government public health order in effect at the time, which only required that residential aged care workers be vaccinated against influenza.
However, the Commission found that this was a reasonable workplace requirement. Any client-facing employees in an aged care environment have the potential to become “superspreaders”. The Commission accepted that extending the vaccination mandate to in-home aged care providers was a reasonable and lawful direction.
This decision indicates that it may be possible for employers to expand the scope of the current Federal mandate for COVID-19 vaccinations for workers in residential aged care facilities, especially as the Delta strain increases the risk of infection to client-facing employees and the people they care for.
4. Communicate the policy broadly, ensure all employees know of the requirement and the consequences for not complying
In all three decisions, the Commission indicated that employers should ensure its mandatory vaccination policy is clearly communicated to its workers. . Managers in the business should be notified of a potential mandatory vaccination policy while it is being considered by the business, and should be provided regular updates regarding the rollout of the policy, relevant deadlines, and the procedure for exemptions.
In all communications regarding the vaccination policy, employers should make sure to clearly outline any potential consequences of workers refusing to comply with the policy.
5. Implement a procedure for medical exemptions
In Sapphire Coast and Ozcare, the Commission confirmed that employers can rely on government communications to determine what medical conditions qualify for an exemption under public health orders. In the context of public health orders mandating influenza vaccinations for aged care workers, the Commission supported the approach of relying on public statements that only workers with a history of anaphylaxis or Guillaume-Barre Syndrome qualified for an exemption.
Employers should have a clear procedure for employees claiming that they should be exempted from mandatory vaccination policies. In Goodstart, applications for exemptions were managed first by the People and Culture team, then assessed on a case-by-case basis by a panel of senior staff with legal, safety, human resource and operational expertise. Goodstart also provided employees with appropriate documentation a medical practitioner could complete in respect of an employee claiming a medical exemption.
6. Ensure employees are given ample time and money to provide additional evidence to the panel as required
Employers should give employees a reasonable opportunity to obtain medical evidence to support their application for exemption. It is also recommended that employers meet an employee’s reasonable costs of doing so.
7. Minimum standard of evidence necessary for medical exemptions
To qualify for a medical exemption employees should provide appropriate medical evidence. The medical practitioner must have treated the worker at some point for the allergy or condition in question, or reviewed medical records that indicate the presence of the allergy or condition. A doctor’s letter merely stating that the worker reports to have a certain condition is unlikely to be adequate to qualify for a medical exemption to a mandatory vaccination policy.