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COVID vaccines in the community services workforce Whether to mandate COVID vaccinations in the community services workplaces is a hot topic at present. We have been hopeful that the Government may have determined a view in advance of the rollout of vaccines to Group 1a, however has not occurred and is looking increasingly unlikely, although they have not ruled it out. Therefore, our advice is based on the current situation.
Employer Obligations As an employer, you have an obligation under the Work Health and Safety Act 2012 to keep your workforce safe and your clients safe. The challenge in this situation is how to meet your obligations to both your workforce and your clients. We will explore how you can assess and manage your organisational risks and duty of care through this document.
Can I insist that my staff have the vaccination? Employers in certain industries, such as health and aged care, may be able to direct employees to be vaccinated against COVID-19, but only if such a direction were both lawful and reasonable. In particular cases though, the direction may not be lawful or reasonable. There are currently Unfair Dismissal claims before the Fair Work Commission that are being closely watched as potential test cases to provide further guidance in this space. However, this is an everevolving situation. In one of these cases, an in-home care worker alleged that she was unfairly dismissed after being informed that she could not return to work without receiving the influenza vaccine due to the COVID-19 pandemic. The worker alleged that she could not be vaccinated due to allergies. She had worked for her employer since 2009 without being vaccinated. While the FWC is yet to make a determination about the reasonableness of the direction to have the Flu Vaccination, Commissioner Hunt commented that: “...each circumstance of the person's role is important to consider, and the workplace in which they work in determining whether an employer's decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee's reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector”. In the absence of a state or federal mandate in relation to COVID vaccinations, it will be important to consider whether it is a true inherent requirement of the role that the vaccination is required. This will depend on a variety of circumstances and for that reason we are not able to issue a ‘one size fits all’ type of advice. At this point in time with no legal precedent to refer to, we recommend that you seek advice about mandating a COVID vaccine for employees. Level 5, 2-4 Kirksway Place, Battery Point, Tasmania, 7004 | Telephone 1300 936 223
www.quartzconsulting.com.au
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Assessing and mitigating your risk As previously stated, it will be important for organisations to consider whether it is a true inherent requirement of the role that the vaccination is required. We would recommend that each organisation reviews their Risk Management Strategy and apply the same risk management processes to this situation, i.e. • • • • •
use your risk controls to identify the risk in each situation; undertake a risk assessment to determine the likelihood of the risk occurring and the potential consequences if it did occur; evaluate the risk and determine whether the organisation is comfortable with their ability to meet their duty of care to keep their employees and clients safe; determine the most effective controls to treat each of the identified risks using your hierarchy of controls; and monitor the effectiveness of the controls.
To date, the use of PPE has been an effective control for the spread of diseases and illnesses and for some organisations, this will remain the most effective control to manage your risks. For organisations providing support to people living in their own home, this may not be as effective as there are a lot of unknown aspects for an organisation to consider. The organisation has a lack of control over how that person lives their life and who visits them, and the person may not be able to understand the basics about how the COVID virus spreads and take the necessary precautions. Organisations who provide centre-based or community-based services may have similar challenges. Some clients being supported or accessing your services may wish to get the COVID vaccination themselves, and this would influence the risk controls being considered by the organisation. For organisations supporting more than two people living in a shared home facility, your risk assessment may be similar to the position the aged care industry has taken and all employees who work in the shared facility are required to have the vaccination, unless there is a medical or religious reason why they cannot. The most important aspect of your risk assessment will be to determine the most effective action you can take to mitigate your risks, in a way that provides your organisation and Board with confidence that you are meeting your duty of care to your workers and clients. If you are able to demonstrate that assessment through an evidence-based approach, you will be able to use that documentation to support the rationale for your decision making and communications to your workforce and clients.
Engaging your workforce As a leader, your workforce will be looking to you to provide direction and confidence with the decision being made. Your actions and communication will set the tone.
Level 5, 2-4 Kirksway Place, Battery Point, Tasmania, 7004 | Telephone 1300 936 223
www.quartzconsulting.com.au
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If you have not already done so, we recommend employers look at their operations and workforce demographics to determine which category they are most likely to fit within under the vaccination rollout plan. A proactive approach would be to commence an engagement process with your workforce where they are actively encouraged to obtain the vaccination or discuss their circumstances and/or objections so that employers can better understand why they are reluctant. The results of your risk assessment processes will be useful here to guide your conversations with each group of workers. It will also give you the opportunity to consider any risks which may arise if a particular individual were to refuse (i.e. their role in the organisation, the risk profile of the specific clients that they support or provide services to etc).
What about employees who can’t or won’t have the vaccination? Some employees may be unable or unwilling to have the vaccination because of medical reasons or because of their religious beliefs. Some employees may have a personal view where they choose not to have vaccinations. Any decision an organisation makes to mandate the vaccine must consider how to appropriately deal with employees who fall into these categories. In the first instance, we encourage the employer to have an open and unbiased conversation with the employee to gain an understanding of their concerns. With that information, the employer can consider how the employee can continue to perform their work in a safe way, and what steps need to be taken for that to occur. As each individual situation is different, we recommend that the organisation seek further advice specific to the circumstances. We highly recommend that a Vaccination Policy be developed prior to the vaccination being offered that addresses how employees will be supported to have the vaccine, what action will be taken if an employee is unable or unwilling to have the vaccination on reasonable grounds, or refuses the vaccination because of their personal beliefs.
Need more support or advice? Quartz Consulting provides workplace and industrial relations advice to a number of community services organisations across the state and can be contacted at any time for further advice, specific to your circumstances. Our office telephone number is 1300 936 223.
Level 5, 2-4 Kirksway Place, Battery Point, Tasmania, 7004 | Telephone 1300 936 223
www.quartzconsulting.com.au