It is an issue that does not want to seem to go away but love or loathe it, the question of mandatory vaccination in the face of COVID-19 is back in the spotlight. With the federal government taking a (mostly) hands-off approach to mandatory vaccines, there are multiple things to consider whether vaccines can be mandated. According to the Fair Work Ombudsman, they are:
Whether a law mandates vaccine such as a state Public Health Order;
a requirement for vaccination is in an employment contract or enterprise agreement, or;
Whether it is deemed ‘lawful and necessary in accordance with the Fair Work Act.
Since our previous blog on whether employers can make it mandatory for employees to be vaccinated against Covid under the basis that it is ‘lawful and necessary’, there have been multiple developments. We will address these developments below.
NSW Public Health Orders
In the midst of COVID-19, state government responses to this pandemic have been nothing short of unprecedented. This is highlighted in NSW under Public Health Orders. It is noted that unless you have a medical certificate highlighting you have a negative reaction to vaccines, you have to be vaccinated if you wish to work in the ‘Greater Sydney’ area under the following occupations:
Construction workers who live or a working in a deemed area of concern to have at least 1 dose of a COVID-19 vaccine either at least 21 days ago OR have 1 dose in the last 21 days and receive a negative COVID test
Disability Support Workers and Early Childhood Workers who live or are working in an area of concern must have at least 1 dose of a Covid-19 vaccine
Whilst it is not mandatory for those living or working outside the areas of concern to be vaccinated, it is believed that sooner or later it will be mandated across NSW, especially for those working in disability, childcare, and construction work.
Also, it is noted that the following occupations must be vaccinated, regardless of where you live in NSW:
As of the 17th of September 2021, the following who work or enter aged care facilities must have at least 1 dose of a COVID-19 vaccine:
Aged Care employees, not limited to nursing and office staff (including receptionists)
People who provide services to aged care residents. This DOES NOT INCLUDE maintenance contractors, students, or other service providers engaged by aged care residents
As of the 31st of October 2021, the following who work or enter aged care facilities must have at least 1 dose of a COVID-19 vaccine:
Students
Health practitioners. It is noted that there is an exemption for medical emergencies
As of the 30th of September 2021, a health care worker must have at least 1 does of a COVID-19 vaccine and by the 30th of November 2021, they must be fully vaccinated. This applies to permanent and casual employees, contractors, visiting practitioners, volunteers, and students. According to the NSW Government, a health care worker works for:
A Local Health District;
A private health organisation;
Affiliated health organisations, not limited to not for profit, religious, charitable, and other NGO’s that contribute to the operation of the public health system;
The Health Administration Corporation;
The Ambulance Service of NSW, including registered paramedics, and;
Ministry of Health;
As of the 8th of November 2021, all teachers and school staff must be fully vaccinated.
Employees who work at an airport, quarantine facility, or as a transport provider AND deals with international arrivals.
Finally, from the 6th of September, if you are in an ‘area of concern’ and plan on leaving the ‘area of concern’ for authorised work, you must have at least 1 dose of a COVID-19 vaccine.
The only exception to these Public Health Order rules is a pre-approved medical certificate by a GP highlighting an allergic reaction to vaccines or other medical conditions that make you ineligible to receive a vaccine.
For more information on mandatory vaccinations for employees under public health orders, see https://www.nsw.gov.au/covid-19/health-and-wellbeing/covid-19-vaccination-nsw/covid-19-vaccination-for-workers
Vaccination Requirements in Employment Contracts or Enterprise Agreements
Before mandating that an employee or prospective employee be vaccinated as part of an employment contract or enterprise agreement, it is important to ensure that it complies with anti-discrimination laws. These laws prohibit discrimination against people with certain characteristics, not limited to sex, religion, age, race, or disability. As a result, it is also important for such contracts or agreements to comply with ‘general protections’ under the Fair Work Act, not limited to workplace rights, anti-discrimination, freedom of association, and independent contractors.
Fair Work Ombudsman Advice
In light of the Fair Work Commission decisions, the Fair Work Ombudsman (FWO) has provided some guidance to the issue of whether it is ‘lawful and necessary’ for employers to dictate to workers they must be vaccinated. However, as with any guidance from government authorities, the information provided is vague and is operated on an individual basis. We have provided a summary of this guidance below.
The FWO notes that factors to take into consideration when mandating vaccines include:
Existing community transmission (and risk of transmission) of COVID-19 in the location where working;
The effectiveness of vaccines in reducing transmission and serious illnesses as a result of COVID-19;
WHS obligations;
The circumstances of the employee, not limited to their duties and risks associated with work, and;
Having a legitimate reason to not be vaccinated.
The FWO noted that as a general rule, there are 4 areas of priority in which it is ‘lawful and reasonable’ that employees ought to get vaccinated. They are:
Tier 1 - employees have work duties involving them interacting with people who are at risk of being infected with COVID-19. Examples include working in hotel quarantine or border control
Tier 2 - employees that are required to be in close contact with people that are vulnerable to the effects of COVID-19. This is not limited to employees working in aged care or the disability sector.
Tier 3 - employees interacting with other people, employees, or the public. For example, working in hospitality or retail
Tier 4 - where employees have minimum contact with people, not limited to those working from home.
The FWO notes that whilst the issue of mandatory vaccines in these groups is on a case-by-case basis, in most instances, it is likely to be ‘reasonable’ for an employer to mandate vaccines for those in Tier 1 or Tier 2. For employees who are in Tier 3, it is likely to be 'reasonable’ for an employer to mandate vaccines if the employee works in an area of COVID-19 community transmission AND is in a workplace that needs to remain open despite lockdowns.
In contrast, it is unlikely that Tier 3 employees who are working in areas where there has been no community transmission of COVID-19 for a period of time to be ordered to receive a vaccine. Finally, it is unlikely to be ‘reasonable’ for Tier 4 employees to be required to be vaccinated.
For more information on the guidance provided by the Fair Work Ombudsman, visit https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#requiring-employees-to-be-vaccinated
Compensation Scheme for employees who suffer vaccine effects
It is natural for employers to be cautious of mandating vaccines due to the risk of liability if things go wrong. Hence, the federal government has recently announced a no-fault compensation scheme for employees who have since received a jab in February AND have experienced a rare and moderate to a serious side effect from the vaccine as well as lost income due to the vaccination. The planned scheme will only cover verified claims worth a minimum of $5,000 which will be assessed by independent experts. Such compensation payments are deemed to offset the prospects of litigation, in which it has been noted that those who do not wish to apply for the scheme can go to court, it is extremely unlikely they will get more compensation.
If an employee wishes to take part in this scheme, it will be a breath of fresh air for employers as a condition of accessing the scheme is a requirement to make no further claims (including legal proceedings) in relation to the same effect from the vaccine. This scheme will go live from the 6th of September. Watch this space for more information and if eligible, register here.
If you require support or advice in relation to vaccinations mandates in the workplace, reach out at enquiries@karenansen.com or give us a call on 0407 863 017.