*** The following represents general advice only in relation to mandatory vaccinations and does not take into account the specific circumstances of your staff, business or client base. Prior to taking any action, we recommend that you seek advice specific to the circumstances of your business to ensure that you are acting in accordance with the relevant guidelines. *** In regard to mandatory vaccination the starting point is consideration of the following: • •
Is the organisation subject to a Public Health Order that requires all staff to be vaccinated? Is the organisation not subject to a Public Health Order but the requirement for employees to be vaccinated is considered a lawful and reasonable direction?
We will cover off both of these scenarios below. Tasmanian Government Health Order The Tasmanian Government announced the requirement for all health care workers to be vaccinated against COVID-19. Workers who are classified under this ruling, in accordance with the No. 3 direction issued on 10 September 2021, will not be permitted to enter or remain on the premises of a medical or health facility for employment, engagement (including volunteering), placement or work experience unless they are sufficiently vaccinated against COVID-19. Read the Public Health Direction regarding the mandatory vaccination of workers in health care settings. The Public Health Order applies to aged care facilities, quarantine sites and medical or health facilities and does not apply to an individual’s home or a business premise that does not provide medical or health services. There is not a specific definition of what constitutes a medical or health facility. If a workplace and its employees are subject to the Public Health Order they must be vaccinated by law and therefore the introduction of a mandatory vaccination policy is very low risk from an employment perspective. In addition, on and after 31 October 2021, a person is not permitted to provide health and medical services and treatments unless the person is sufficiently vaccinated. Please note that sufficiently vaccinated can mean a person who has had a single dose and is booked in for a second dose and potentially a person who is booked in for their first dose if they have provided evidence of the booking to their employer. Health and medical services or treatments include treatments provided by: • •
A person who is registered in a medical profession under the Health Practitioner Regulation National Law; or A person who is registered under the Health Practitioner Regulation National Law to practice a health profession
The Public Health Order also requires an allied health professional be vaccinated and employees engaged to provide the following services do need to be vaccinated regardless of where the service is provided. This includes the professions of: • • • • • • • • • • • • • •
Art Therapist Audiologist Chiropractor Counsellor (holding a Master of Counselling from a tertiary institution) Dietician Exercise Physiologist Occupational Therapist Osteopath Music Therapist Physiotherapist Psychologist Rehabilitation Counsellor Social Worker Speech Pathologist
Advice provided to the Tasmanian Council of Social Services Inc by Quartz Consulting. 24 September 2021
It is recognised there may be times where an employee by the nature of their role is required to be vaccinated and a coworker by the nature of their job is not required to be vaccinated, and they work together at the same time. The Public Heath Order does include some exemptions but there are some stringent rules around how the exemptions for an individual will operate. If an employee claims they are not required to be vaccinated due to an exemption, we would recommend that organisation seeks further advice on whether or not the exemption is legitimate. In circumstances where an organisation or its employees are subject to a Public Health Order it is recommended that they communicate with each employee regarding the requirements for their position as it has been identified as one that requires the person to be vaccinated and they are required to provide evidence of this no later than 30 October 2021, noting the failure to obtain their vaccination, or provide a medical exemption from doing so, will mean they cannot continue to work in the this role. We will cover managing a refusal to vaccinate below. NDIS Requirements For those organisations who support NDIS clients it is worth noting that the NDIS Commission have put out information of the provision of support and vaccinations. Their advice is that a NDIS client can choose to refuse support from a worker who is not vaccinated. In addition, they advise that a support worker cannot refuse to support a NDIS client who is not vaccinated. Making Vaccination Mandatory — Public Health Order Does Not Apply In circumstances where the Public Health Order does not apply if the employer still wished to pursue a policy of mandatory vaccinations it essentially defaults to whether the requirement is a reasonable and lawful direction of the employer. The Australian Government have directed employers to advice produced by the Fair Work Ombudsman. They have advised that employers can introduce mandatory vaccination in the workplace in the following circumstances: • •
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A specific law (such as a state or territory Public Health Order) requires an employee to be vaccinated, The requirement is permitted by an enterprise agreement, other registered agreement or employment contract (noting that to be enforceable, a contractual term that requires vaccination against COVID-19 must not offend an anti-discrimination law); or It would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.
In the absence of a Public Health Order, it would be the third dot point that would apply which is the vaccination requirement being a lawful and reasonable direction. What is considered ‘reasonable’ will depend on the specific circumstances of the workplace as well as the prevalence of COVID-19 in the area. Reasonable and Lawful Direction Whether a direction is lawful and reasonable is fact dependent and needs to be assessed on a case-by-case basis. Just because it may be lawful and reasonable to give a direction to one employee, doesn’t mean it will automatically be lawful and reasonable to give the same direction to another employee or to all employees. For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law). There are a range of factors that may be relevant when determining whether a direction to an employee is reasonable. Things to take into consideration include:
Advice provided to the Tasmanian Council of Social Services Inc by Quartz Consulting. 24 September 2021
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The nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service). The extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community. The terms of any Public Health Orders in place where the workplace is located. The effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant (find out more at the Department of Health: Statement from ATAGI). Work health and safety (WHS) obligations (find out more at Safe Work Australia). Each employee’s circumstances, including their duties and the risks associated with their work. Whether employees have a legitimate reason for not being vaccinated (for example, a medical reason). Vaccine availability.
Fair Work Ombudsman Tier Guidance The Fair Work Ombudsman has classified organisations into four tiers to assist with determining whether a direction may be reasonable: • • •
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Tier 1 work: Where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (for example, 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 COVID-19 (for example, 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, essential goods and services). Tier 4 work: Where employees have minimal face-to-face interaction as part of their normal employment duties (for example, working from home).
The Fair Work Ombudsman’s guidance is that it is “more likely” to be reasonable to require vaccination for Tier 1 work as opposed to Tier 4 work. Under the guidance it is likely that community service organisations are probably going to be either in Tier 1 or Tier 2 depending on the services that they provide. If the community service organisation does not provide direct services to the community or clients they may be more appropriately designated into Tier 3. However, these tiers do come with the following caveat:
Regardless of the tier or tiers which may apply to work performed by employees, the question of whether a direction is reasonable will always be fact dependent and needs to be assessed on a case-by-case basis. This will require taking into account all relevant factors applicable to the workplace, the employees and the nature of the work that they perform. Employers should get their own workplace relations advice if they’re considering making COVID-19 vaccinations mandatory in their workplace. Workplace Policy and Consultation The other recommendation is that the reasonable and lawful direction is set out in a workplace policy. All awards and enterprise agreements have a consultation clause requiring employers to consult with employees and any representatives when an employer intends to implement significant workplace changes. Under WHS laws, employers also have to consult with employees about possible control measures to address WHS risks. This includes consideration of a new policy about COVID-19 vaccinations or changes to an existing vaccination policy. Employers must also provide employees a reasonable opportunity to express their views views the policy changes. about about the policy changes. Generally, employers need to take these views into account when making a decision.
Advice provided to the Tasmanian Council of Social Services Inc by Quartz Consulting. 24 September 2021
Some of things that organisation could consider, and are likely going to be asked about, in relation to this would include if the employer will provide paid time off for employees to be vaccinated (we anticipate that HACSU will advocate this position). If an employee falls ill after a vaccination they can access personal leave. We also anticipate that an argument could be made that if the employer is making vaccination mandatory then any associated time off due to side effects should be paid time off and the employee should not have to access their personal leave. Each organisation can determine what the right policy approach is for them. We would be happy to assist any organisation that wishes to develop a COVID-19 vaccination policy. Evidence of Vaccination As part of the mandatory vaccination process an organisation is likely to require employees to demonstrate that they are vaccinated to ensure compliance with the directive or policy. The Fair Work Ombudsman advise that if an employer has provided a lawful and reasonable direction to be vaccinated for COVID-19 and an employee complies, the employer can also ask the employee to provide evidence of their vaccination. An employer should also make sure that a requirement to provide evidence is lawful and reasonable. As stated above, whether a direction would be lawful and reasonable depends on all of the circumstances. An employer may ask to view evidence of an employee's vaccination status without raising privacy obligations provided they do not collect (i.e. make a record or keep a copy of) this information. An employer should not collect vaccination status information from an employee unless the employee consents and the collection is reasonably necessary for the employer's functions and activities. However, consent to collection is not required if the collection is required or authorised by law (for example, a Public Health Order applies or where it is necessary for the employer to meet their obligations under WHS laws). Refusing to be Vaccinated The Fair Work Ombudsman have also provided guidance about employees refusing to be vaccinated. It is recommended that if employees have questions or concerns about getting vaccinated the organisation provides the employee information about vaccination from the Department of Health who have FAQs about the safety and effectiveness of the vaccines. An employee might refuse a direction to be vaccinated even if they are required to under a specific law, agreement or contract, or after receiving a lawful and reasonable direction. In these situations, an employer should ask the employee to explain their reasons for refusing the vaccination. An employee may have a legitimate reason for not being vaccinated. For example, the employee could have an existing medical condition that means vaccination is not recommended for them. An organisation can recommend that an employee speak to their doctor if they have concerns about receiving a vaccination because of a medical condition. If the employee gives a legitimate reason for not being vaccinated, the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements, such as asking the employee to perform different duties or to work from home. Where an employee has a reason for not getting vaccinated, an employer may be able to request evidence of the reason for their refusal. In some circumstances where an employee refuses to be vaccinated an organisation will then be required to make a determination about what steps they are going to take in response. This may include considering disciplinary action or even termination of employment.
Advice provided to the Tasmanian Council of Social Services Inc by Quartz Consulting. 24 September 2021
Employer Response to Refusal An employer may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of: • •
A specific law; or A lawful and reasonable direction requiring vaccination.
Before taking any action, an employer should talk to the employee and discuss the employee’s reasons for not wanting to get vaccinated. For example, the employee may have a medical condition that means vaccination is not recommended for the employee. If an employee refuses a direction to be vaccinated, it’s unlikely that their employer can stand down the employee without pay as provided for in the Fair Work Act. This kind of stand down without pay is only available in certain circumstances. An organisation should make sure that they follow a fair process and have a valid reason for termination or they may breach unfair dismissal or adverse action laws under the Fair Work Act. If an organisation got to this point where they have an employee refusing to be vaccinated without a satisfactory reason or exemption, we would recommend they seek advice about process before acting. There is a range of circumstances that would need to be considered that could impact on the how the organisation could choose to respond. For example, our view would be if the employer had an established policy in place, it would give them stronger grounds to terminate compared to the absence of a policy. Hopefully that has covered all the primary concerns regarding mandatory vaccinations. If you would like any further advice on any specific element, please do not hesitate to contact Quartz Consulting.
Advice provided to the Tasmanian Council of Social Services Inc by Quartz Consulting. 24 September 2021