Medical experts consider that the Delta strain is up to 40% more contagious than previous strains of COVID-19. [1] As we are experiencing in NSW, the Delta strain significantly increases the risk to the community and to workers. This is especially the case in sectors like healthcare and aged care, but is also becoming increasingly relevant in other areas of essential services such as transport, logistics, manufacturing and retail.
In late June, 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 a 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 mandate that all their workers 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 in the short term.
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.
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 consider these cases later in this article.
The weight to be given to various factors in decision making is highly dynamic as the COVID-19 situation evolves in NSW and other states. The risks posed by the Delta variant in terms of 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 for Government and business.
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 a worker 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), 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 high risk 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. As an example, a mandatory vaccination policy may be considered reasonable in respect of certain front line healthcare workers who are involved in administering the vaccine, especially where they are involved in the care of vulnerable populations.
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 high risk work environments such as residential aged care, against the risks of the vaccination itself on workers, need to be carefully balanced using the best available data. What is “reasonable” is shifting very quickly as the information, and level of community transmission, increases and there is greater community/Government promotion of vaccination (as evidenced in NSW now).
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 worker has an evidence 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.
If a worker has a conscientious objection to receiving a COVID-19 vaccine, the employer should consider, on a case by case basis, whether it is reasonable to enforce the mandatory vaccination direction in respect of that worker.
An employer’s ability to direct its contractors to receive the COVID-19 vaccination will largely depend on the terms of the agreement between the employer and the contractor.
However, the same anti-discrimination issues will be relevant and so employers should consider imposing this requirement only where it is “reasonable” to do so having regard to the nature of the services provided by the contractor.
If employers 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. Employers will need to consider, and make clear to those workers, the evidence that 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.
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 emerging 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 risks of the COVID-19 vaccines and the risk of COVID-19 transmission in the community.
Rather than mandating COVID 19 vaccination, Governments and business are considering a range of incentives that may be offered to address vaccination hesitancy.
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 a worker’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 workers 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.
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.
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 workers 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 and any future State or Federal COVID-19 vaccination mandates, 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 workers 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 workers 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 that a medical practitioner could complete in respect of an employee claiming a medical exemption.
6. Ensure workers are given ample time and money to provide additional evidence to the panel as required
Employers should give workers a reasonable opportunity to obtain medical evidence to support their application for exemption.It is also recommended that employers meet a worker’s reasonable costs of doing so.
7. Minimum standard of evidence necessary for medical exemptions
To qualify for a medical exemption workers 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.
[1] https://www1.racgp.org.au/newsgp/clinical/is-australia-prepared-for-the-covid-delta-variant
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