There has been significant media and public attention on vaccination against COVID-19 and the role of employers.
The considerations for employers in incentivising or making COVID-19 vaccination (‘vaccination’) mandatory are significant.
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Communication about Vaccination
The Therapeutic Goods Administration (“the TGA”), part of the Australian Government Department of Health has issued permission regarding lawful communication in relation to vaccination.
Any communication must be consistent with Commonwealth Government health messaging in relation to the vaccination program.
Any self-developed communication must not:
- Refer to or identify vaccine brands or manufacturers;
- Include any comparison of vaccines;
- Include any statement that vaccines cannot cause harm or have no side effects; or
- Contain any statement regarding vaccination that is false or misleading
Using Commonwealth Government material in any communication you would provide to your employees would appear to be the best option for employers.
Material can be accessed HERE.
Aside from the TGA’s permission to lawfully communicate in relation to vaccines, employers must continue to otherwise not mislead in relation to vaccination.
The TGA has also issued guidance on the lawful offering of an incentive in relation to vaccination.
Employers can offer rewards to employees to be fully vaccinated provided that the offer meets the following conditions:
- Rewards can be offered and given to employees who have been fully vaccinated, which is currently two vaccinations;
- The rewards offer must contain a statement to the effect that the vaccination must be undertaken on the advice of a health practitioner;
- Rewards must not include tobacco or medicines;
- An offer of alcohol as a reward must be consistent with RSA and not encourage excessive or rapid consumption, or have a strong or evident appeal to minors;
- It must not refer to or identify vaccine brands or manufacturers;
- It must be made to all eligible people who have been vaccinated i.e. the offer must be retrospective.
Employers should ensure that the following is clear:
- That vaccinations must be undertaken on the advice of a medical practitioner;
- That it is voluntary;
- That the employee must arrange their own appointment outside of working hours;
- What evidence of vaccination will be sufficient; and
- That an acknowledgment form is signed for all of the above mentioned communication and relevant issues;
Employers should also give consideration to discrimination laws (this is detailed further below).
Employers should also give consideration to privacy laws in the collection of information in relation to vaccination (this is detailed further below).
The TGA has also issued guidance on businesses facilitating vaccination in the workplace.
An employer could partner with an approved vaccine provider to facilitate vaccination of their staff in the workplace.
Approved COVID-19 vaccination provider means a provider who is:
- A recognised vaccination provider within the meaning of the Australian Immunisation Register Act 2015; and
- Approved or authorised under relevant state or territory legislation to administer relevant COVID-19 vaccines; and
- Approved by the Department to participate in the National COVID-19 Vaccination Program.
In this case an employer can advise employees of the particular vaccine/s being used. This must be factual only and not a promotion of a particular vaccination.
The TGA gives the following examples:
Acceptable - An internal email to employees includes a statement to the effect: "Staff are advised that the [vaccine trade name] vaccine is being offered in the staff gymnasium on [dates and times]."
Acceptable - A statement to the effect: "[business name] has partnered with [approved vaccine provider name] who is an approved vaccination provider of the [vaccine trade name]".
Not acceptable - An internal email to employees includes a statement to the effect: "Staff are advised that the [vaccine trade name] vaccine is being offered in the staff gymnasium on [dates and times]. Vaccination is the best way to keep ourselves and our family protected. You will receive a discount voucher for [incentive] with your second dose!"
There are other considerations to facilitating vaccination including if vaccination is facilitated at the workplace then any adverse reaction may be an accepted workers’ compensation claim, even if the vaccination is not mandatory.
Employers are not required to provide leave or make other arrangements to allow employees to be vaccinated at their choosing. Employers however might wish to facilitate vaccination in other ways, by providing employees with flexibility or an opportunity to be vaccinated during working hours or by providing time off post vaccination. Employers should implement a policy if they choose to facilitate vaccination in this way, this policy should clearly outline:
- That vaccinations must be undertaken on the advice of a medical practitioner;
- That it is voluntary;
- That the employee must arrange their own appointment;
- What notification or approval requirements are necessary to access the policy; and
- What evidence of vaccination or vaccination appointment information will be sufficient.
Should an employee have an adverse action as a result of vaccination where an employer is facilitating an employee being vaccinated outside of the workplace it is not likely that this will be an accepted workers compensation claim. The facilitation of vaccination in other ways would ordinarily lead to unpaid leave or paid leave.
No Fault COVID-19 Indemnity Scheme
On 28 August 2021 the Honourable Greg Hunt, Minister for Health and Aged Care, announced a compensation scheme for Australians that suffer an adverse reaction to vaccination.
A summary can be found via the press release HERE.
The scheme will cover the costs of injuries $5,000 and above due to administration of a TGA approved COVID-19 vaccine or due to an adverse event that is considered to be caused by a COVID-19 vaccination.
The webpage to register an interest in making a claim is now up and running and can be accessed HERE.
Making Vaccination Mandatory
Mandatory vaccination in the workplace should only be implemented after careful consideration of the risks to an employer. Advice should be sought prior to the introduction of a mandatory direction or policy.
Consultation with the workforce prior to introducing a mandatory direction or policy is an essential step. This may include consultation in accordance with a consultation term in an industrial instrument such as a modern award or enterprise agreement.
If an employer is subject to an enforceable government direction that requires vaccination (such as a quarantine hotel), the risks to an employer are considerably reduced.
The Fair Work Ombudsman (‘the FWO’) has issued detailed guidance on its position in relation to mandatory vaccination. This can be found HERE.
Except in the unlikely circumstances that an employment contract or enterprise agreement authorizes a direction to have a vaccination, the question of mandatory vaccination depends on whether it is a reasonable and lawful direction.
Whether mandatory vaccination in the workplace is a reasonable and lawful direction will depend on the particular circumstances of the workplace and the employee including:
- Are there relevant terms of an employment contract or industrial instrument that should be considered;
- Whether there are any enforceable government directions that apply to that workplace (such as a quarantine hotel);
- Whether mandatory vaccination is reasonable for an employer to comply with its duty to reduce the risk of exposure to COVID-19 based on an assessment of workplace and health and safety risks having regard for the industry of the employer and the work of employees;
- Whether mandatory vaccination as a control measure is reasonably practicable;
- What work does an employee perform and in what environment and what are the risks to that particular employee;
- Whether there are health, medical or religious grounds for an employee to refuse vaccination; and
- Whether an employee’s vaccination status is an inherent requirement of an employee’s position.
Any mandatory vaccination directive or policy should include possible exemptions to vaccination to reduce the risk of a discrimination claim.
The FWO has produced a tiered view of the likeliness of a reasonable and lawful direction, Part of this information is reproduced below:
- Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, 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 example, 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).
Quarantine Hotels are in Tier 1.
The FWO’s view is that non-quarantine hotels are in tier 3. Please note that this is the FWO’s view and is not yet supported by case law in relation to vaccination (COVID-19 vaccination). There is some case law, outlined below, in relation to influenza vaccination that is relevant.
Employers that are not operating as a quarantine hotel should conduct their own workplace health and safety assessment in considering whether mandatory vaccination is reasonably practicable as a control measure and likely to be considered a reasonable and lawful direction.
The recent case law that is most relevant at this time relates to influenza vaccination in child and aged care settings; nevertheless the recent case law found that mandatory influenza vaccination was a reasonable and lawful direction in those particular circumstances.
Note: A copy of the full decision in relation to each matter can be accessed by clicking on the relevant case reference below.
- Employer made a decision to introduce a mandatory requirement for all of its staff to be vaccinated against the influenza virus.
- The employer operates within highly regulated industry that creates statutory obligations beyond that of a normal employer.
- The childcare industry faces unique organisational challenges which make other controls less effective, or impracticable.
- The FWC was satisfied that the Respondent’s adoption of mandatory vaccination for its educators was reasonable.
- The NSW Government issued public health order requirements for flu shots for persons who worked within NSW residential aged care facilities.
- The employer communicated the direction to employees.
- The FWC found that the Applicant was unable to perform the inherent requirements of her job because she did not have a legitimate exemption to the requirement to have a flu shot and because without it, she simply was unable to enter the workplace to perform the (principally) receptionist role and other clerical inherent requirements of her position.
- The FWC found that a valid reason for dismissal existed and that the dismissal was not unfair.
- Queensland Chief Health Officer made it mandatory for workers and visitors to aged care facilities to have an up-to-date influenza vaccination (via the Aged Care Direction).
- The Respondent decided to re-write its Employee Immunisation Policy to make influenza vaccinations a mandatory requirement from 1 May 2020 for all client-facing roles including community care.
- The Aged Care Direction and later directions meant that it was a lawful requirement to be vaccinated against influenza to enter or remain on the premises of a residential aged care facility unless a vaccination was not available to the person.
- The Aged Care Direction did not apply to community care or in-home care.
- The Respondent’s revised policy mandated a higher bar than that contained within the Aged Care Direction in force at the time.
- The FWC was of the view that the policy was reasonable having regard for the vulnerability and age of the clients of the Respondent and that there are less infection controls available when visiting clients in their homes.
- Commissioner Hunt found that the Respondent’s decision to mandate influenza vaccinations for all of its client-facing employees, without allowing any exemption was lawful and reasonable.
Some large employers (including Telstra, SPC and Qantas) have already announced mandatory vaccination workplace policies. These employers face different risks in relation to COVID-19 with Qantas more closely reflecting the risks of transmission to the workforce present in hospitality such as large volume interaction with customers and the public. If either of these policies or a dismissal or other action taken as a result of these policies are challenged in court, commission or tribunal, this could set a precedent for other employers.
Discrimination in Vaccination
Vaccination presents a range of discrimination considerations for employers including in relation to prospective employees. This also includes in relation to employees and their consent to disclosing their vaccination status.
The primary considerations are:
- Will the workplace policy or directive result in an employee being treated less favourably?; and
- Is the workplace policy or directive reasonable and lawful?
- The employer must then consider:
- Does the workplace policy or direction present a discrimination risk, whether direct or indirect, because of an employee’s protected attribute ie. disability, impairment, pregnancy, religious belief or religious activity?;
- Does the workplace policy or direction (whether mandatory or not) include exemptions for employees that cannot comply because of a protected attribute?; and
- Is the requirement (in the case of mandatory vaccination) a genuine occupational or inherent requirement?
Employers also need to be mindful of their obligations to consider and possibly make reasonable adjustments or modifications for employees with an impairment and whether the fixing a term in relation to an employee with an impairment is reasonable.
The Australian Human Rights Commission has published guidance on vaccination and federal discrimination legislation, which can be accessed HERE.
It is more likely that a discrimination claim would be made to the Queensland Human Rights Commission (‘the QHRC’) in relation to the Anti-Discrimination Act 1991 (Qld). The QHRC has some guidance on vaccination that can be accessed HERE.
In its guidance the QHRC has provided a very general view that an opposition to vaccination that is not because of a protected attribute is unlikely to be a sufficient basis for a discrimination complaint.
Workplace Health and Safety and Vaccination
Employers have an obligation to ensure a safe and healthy workplace. To date employers have, in conjunction with enforceable government directions, managed health and safety (in relation to COVID-19) through a variety of control measures such as physical distancing etc. In certain settings, such as quarantine hotels, mandatory vaccination and regular testing are control measures that are supported by enforceable government directions.
Vaccination is another control measure for employers to consider however at this time, vaccination is not mandated under workplace health and safety legislation. Employers encouraging employees to be vaccinated is a control measure that can be utilised.
Employers wishing to introduce mandatory vaccination that are not operating as a quarantine hotel would need to undertake a detailed workplace health and safety risk assessment to determine whether mandatory vaccination as a control measure to reduce the risk of COVID-19 disease and transmission to the workplace, is reasonably practicable.
At this time the guidance from Safe Work Australia and Workplace Health and Safety Queensland is that mandatory vaccination in settings where an enforceable government direction is not in effect, is not likely to be a reasonably practicable control measure.
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Privacy, Vaccination and asking about Vaccination Status
Vaccination in the workplace raises significant questions regarding privacy and the collection and use of employee health information.
Employers need to consider what information will be sought and is it necessary or authorised by law, where consent is required and to limit the health information that is sought. For example, the citing of a record of vaccination without collecting or making a record of vaccination might allow an employer to know who has been vaccinated without some of the additional considerations in relation to privacy laws.
Employers also need to consider how information will be collected stored and used, even where the records are employee records that are exempt from the Australian Privacy Principles after the point of collection.
The Australian Government – Office of the Australian Information Commissioner has issued privacy guidance to employers on the collection and use of information in relation to vaccination which can be accessed HERE.