Covid-19 – can employers mandate inoculations?

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Covid-19 – can employers mandate inoculations?

As the first supplies of Covid-19 vaccines arrive in Australia in large volume, it is timely to review the strategies employers should implement to minimise or eliminate the risk of the virus entering or spreading within their workplace. The key question is, under what circumstances could an employer introduce mandatory testing.

Employers have a fundamental legal obligation to provide and maintain a safe place of work. Indeed, there are already a range of occupations where employers routinely require employees to have mandatory inoculations as part of their employment, including aged care workers (Influenza), plumbers (Hepatitis) and road workers removing dead animals (Q Fever), amongst others.

If an employer mandated Covid-19 vaccinations, they would need to justify that decision by showing the vaccination is necessary for the employee to safely perform the inherent duties of the position. That decision is relatively straightforward if it applies to ‘frontline troops’ (including the classifications above), but becomes more debatable if the employer wanted to apply the decision unilaterally to every employee in the workplace, as well as visitors, contractors etc.

If a mandatory policy is introduced, under what circumstances could an employee refuse to undergo inoculation? Employees have an implied duty to follow all lawful and reasonable directions given by their employer during the course of employment, but would this extend to mandatory vaccinations?

This situation was recently addressed in an FWC case involving an aged care worker who refused to have an influenza injection due to an extremely adverse reaction to a flu shot when she was a child.

Although the matter has not been concluded, the following comments from Commissioner Hunt are worth noting:

In my view, 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 an inherent requirement of the role is a lawful and reasonable direction…It is not inconceivable that come November 2021, employers of men engaged to play the role of Santa Clause in shopping centres, having photos taken around young children, may be required by their employer to be vaccinated against influenza, and if a vaccination for COVID-19, that too. The employer in those scenarios…may decide at their election that vaccinations of their employees are now an inherent requirement of the job. It may be that a court or tribunal is tasked with determining whether the employer’s direction is lawful and reasonable, however in the court of public opinion, it may not be an unreasonable requirement. It may, in fact, be an expectation of a large proportion of the community.

Ms Maria Corazon Glover v Ozcare (U2020/13450)  [2021] FWC 231

Unfortunately, in this case, the applicant did not produce any conclusive medical evidence that the employer’s mandatory injection requirements posed significant risks to her health.

At the very least, it is recommended that employers should encourage as many employees as possible to undergo inoculation voluntarily.

If inoculation is deemed mandatory, employers should consider whether other options are available to reduce the risk of infection, such as the use of personal protective equipment. Further, the collection and storage of information of employee’s inoculation records needs to be addressed in terms of privacy legislation.

If an employee does refuse inoculation, the employer should consider the reasons for the refusal (particularly if it may amount to grounds of discrimination) and treat each episode individually and asses on its own merits.

Employers and employees with a higher client, co-worker or occupational risk may also have herd immunity obligations under WHS law.

The Covid-19 vaccination is anticipated to lower infection as any infection in a vaccinated person will be less severe, and viral shedding will be shortened.  We, therefore, expect that vaccinated employees will be less likely to pass the infection on.

The established WHS obligations on employers and employees extend to others and are reliant on risk assessments.  Once the vaccine is available and recommended for high-risk workers, if a worker is not vaccinated, the supervision obligations on employers with regards to other controls will increase and herd immunity WHS obligations for employers, and fellow employees may also increase.

        


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Where workers refuse vaccination, are unable to be vaccinated for medical reasons, or do not respond to vaccination, the PCBU should first undertake a risk assessment to determine the most appropriate way to protect these workers against infection, considering how the infectious disease is spread.

Where workers refuse vaccination, are unable to be vaccinated for medical reasons, or do not respond to vaccination, the PCBU should first undertake a risk assessment to determine the most appropriate way to protect these workers against infection, considering how the infectious disease is spread.

For queries about COVID-19, change management or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW or 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation

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