MANAGEMENT

MANDATING STAFF VACCINATIONS

THE VAGUE LEGALITIES OF FORCING STAFF TO RECEIVE A COVID-19 VACCINE IS HAZARDOUS FOR EMPLOYERS WHEN THERE ARE NO PUBLIC HEALTH ORDERS. KAREN CROUCH PROVIDES KEY INFORMATION ABOUT THIS COMPLEX ISSUE.

KAREN CROUCH

"IF AN EMPLOYEE REFUSES TO BE VACCINATED, CONSIDER WHETHER YOU CAN MOVE THEM TO A POSITION WITHIN THE PRACTICE THAT HAS LESS EXPOSURE" A t the time of writing this article – amid such a fastchanging environment – key issues around employers’ rights and responsibilities to direct staff vaccinations were unclear. The government has encouraged businesses to make their own assessment/decisions but with limited formal guidance on their rights and protections. Without legal precedents on the matter, employers are faced with the need to decide, roll the dice and see where it lands. To keep the health industry up to date, we have collated some relevant, current information that may assist health practice employers in making these complex decisions – in the event that mandatory vaccination policies aren’t enforced on the health sector.

Regulations and legislation: COVID-19 is an evolving situation subject to change as additional/ new information and developing consequences of medical, legal, economic or social conditions come to hand, requiring deeper consideration of existing regulations.

Consequently, some employer decisions may be subjected to a caseby-case review by relevant authorities.

Vaccination mandates: These are not currently permissible unless a state/territory government legislates to cover specific circumstances (e.g. aged care, airport workers, certain healthcare).

At this point, there are mandates in some states requiring health practice employees to be vaccinated. Without public health orders, there is some legislation containing guidance on which employers may have reasonable grounds for mandating – of course subject to case-by-case review.

Fair Work Act: Current employment contracts may be amended to include mandatory vaccination but its enforceability would be subject to Fair Work assessment on a case-by-case basis. It is unclear as to whether this is a pre-requisite to mandating or an action that will be undertaken if an objection is raised by an individual or group such as a union. (WHS) Safe environment: Current WHS legislation requires employers to maintain a safe workplace and, subject to a comprehensive Risk Assessment (to be documented and register

To provide clarity around mandatory workplace vaccinations, the Fair Work Ombudsman has ranked industries into four tiers with Tier 2 being employees who interact with vulnerable people. maintained) proving COVID-19 is a potential risk to staff/patients/visitors, the employer may require employees to be vaccinated, even as a contract term (existing or by amendment); • Note: WHS Risk Assessment example does not cover possible risk of

COVID-19 being acquired from an unvaccinated staff member; • Opportunities to place unvaccinated staff in low-risk areas/jobs should be explored; • An alternative requirement to mandating staff vaccination is the requirement of unvaccinated/antivaxers to attend regular COVID-19 tests and present ‘negative’ results.

However, it may be impractical/costly as the employer must allow time off to attend tests and practice resources will be reduced by such absence.

In-house testing may be a possibility.

Employers have the right to seek evidence of specific reasons why an employee refuses vaccination (e.g. medical condition, religious grounds).

When/if mandating vaccination, the employer must take care not to offend anti-discrimination laws. icare (workers compensation): Covers processes and responsibilities employees have to support their respective claims including evidence that COVID-19 was indeed acquired in the workplace and not while the employee was engaged otherwise. icare is still working with regulators to determine changes to processes.

Safework Australia: Healthcare workers (other than those prioritised in Phase 1a of the National Rollout Strategy) include – but not limited to – those working in hospitals, general practices, pharmacists, allied health, and other healthcare services.

These workers are a priority population for vaccination in Phase 1b of the rollout strategy.

This organisation’s advice, role and the National Rollout Strategy confirms recognition of medical practices being classified high priority, thereby deserving serious consideration by

Employers/Employees when deciding to mandate a COVID-19 vaccination.

Review/authorisation decision to mandate: As most critical decisions may be subject to case-by-case review, it is advisable to submit such opinions for authorisation by the relevant government authority.

As this process may result in one or several government authorities’ discussions to reach a decision, it could delay any proposed, earlier action (i.e. amend employment contract immediately and await reaction, if any).

There will still be outstanding decisions for employers to consider: • Practicality of moving unvaccinated, including dissenting, staff to a low-risk work environment; • Practicality and cost of requiring regular

COVID testing; and • If the above options are not practical, what action should be taken in respect of staff who do not wish to be vaccinated, other than those with legitimate reasons. If termination is considered the only option, unfair dismissal regulations (Fair Work Act) must be considered.

A recent article was published by the Sydney Morning Herald on 2 August 2021 in which high profile barrister Mr Arthur Moses, SC, said there was good reason to think that an employer is within its rights to direct workers whose job required contact with vulnerable members of the community to get vaccinated.

He also stated: “There is a term implied in law in every contract of employment requiring an employee to obey the ‘lawful and reasonable directions’ of their employer."

The Fair Work Ombudsman has updated its latest guidelines, ranking industries into four tiers with Tier 2 being employees who interact with vulnerable people (healthcare, aged care workers).

The body states it is "unlikely to be reasonable" to make Tier 4 workers (minimal face-to-face interaction) get vaccinated, which further suggests it may be “likely to be reasonable” to mandate vaccination for Tier 2 employees.

Relevant factors Moses suggested for employers making the decision include: • Whether a workplace is open plan; • How many employees worked in the space? Are employees required to work in proximity to one another?; • Whether the job exposes unvaccinated employee to many people; • Health and safety laws requiring employers to ensure health and safety conditions for employees.

Takeaway summary: if an employee refuses to be vaccinated, consider whether you can move them to a position within the practice that has less exposure to other people and consider whether to require them to provide regular negative COVID test results.

If that is not practical and you feel you have to let the employee go in order to protect your workplace and people entering it, take legal advice on unfair dismissal/anti-discrimination action you may be exposed to prior to terminating staff.

For now, stay safe! n

KAREN CROUCH is Managing Director of Health Practice Creations Group a company that assists with practice set ups, administrative, legal and financial management of health practices. Contact Karen on email kcrouch@ hpcnsw.com.au or visit www.hpcgroup.com.au.

7th

anniversary

1951- 2021