What role will employers play in the vaccination of our country?

We are all aware of the COVID-19 impact upon workers, but employers are also facing challenges, having to navigate complexities surrounding the return to work of their workforce in an environment of continuous change and uncertainty.

What role will Employers play in the vaccination of our country?

Looking toward the end of the current lockdowns and border closures, many employers are faced with challenges such as the mental and physical de-conditioning of their workforce, workplace ergonomics, and reimplementation of COVID Safe plans and procedures. In addition to this, there exists the added complexities of navigating the legal, health, ethical and operational nuances of establishing their position on vaccinations in terms of protecting their workplace. 

A timeline of changing advice and key events 

The below provides an outline as to the key events which have occurred in Australia in 2021 in relation to the second COVID outbreak.

• April 2021: Fair Work Ombudsman (FWO) states employers could not mandate vaccinations unless Public Health Orders applied to their industry. Analogous commentary was released by SafeWork Australia stating that mandatory vaccinations would unlikely be considered a ‘reasonably practicable control measure’. 
• 5 August 2021: SPC became the first large Australian business to announce mandatory vaccinations for its workforce, requiring all staff to be fully vaccinated by the end of October 2021.
• 6 August 2021: previous FWO advice was superseded by the release of a four-tiered employer category guideline policy, with the tiers cascading down in the likelihood of employers to be able to mandate vaccinations. The FWO subsequently updated advice to reflect this. SafeWork Australia also updated their advice with a listing of considerations to help determine where mandatory vaccinations could be considered ‘reasonably practicable'.
• 24 August 2021: NSW’s nominal insurer, Icare, announced they would exclude COVID-19 claims and COVID vaccine adverse reaction claims from employers’ Workers’ Compensation premiums.
• 1 September 2021: A lawsuit was filed in the NSW Supreme Court, arguing against the Constitutionality of Public Health Orders on Mandatory Vaccinations for Frontline workers, with a hearing due to take place on 30 September, 2021.
• 6 September 2021: the Australian government commenced a compensation scheme for any individuals who suffer a serious injury as a result of the administration of the COVID vaccine. The scheme covers the costs of injuries above $5,000 due to a proven adverse reaction to a COVID-19 vaccination. While this news is welcomed, it’s by no means a pioneering scheme. Much of the developed world, and indeed a large portion of the developing world, already have some form of COVID vaccine injury scheme, with some operating similar schemes for other mass immunisation programs.
• 31 October 2021: Final date for SPC employees to be fully vaccinated.

What impact is the latest advice likely to have?

There are significant repercussions from the removal of the legal uncertainty pertaining to where liability sits for vaccine injury as well as broadening the scope of businesses who are likely to be eligible to mandate vaccinations for employees.

Australian employers are now much more likely to play an active role in the vaccination of their employees. Some employers will co-ordinate and incentivise voluntary programs, while others will pursue mandatory vaccinations. 

The combination of worsening COVID case numbers, the higher transmissibility and reduced effectiveness of other control measures against the Delta strain as well as improved vaccine accessibility are likely to lead to many more instances of employers mandating vaccinations for staff to come back into the workplace.

With a number of high-profile organisations such as SPC, Qantas, and Telstra mandating vaccines, many more are grappling with the idea. 

What makes this topic so complex?

Aside from the complex practical considerations, vaccination policies have legal implications across a number of different branches of law including Employment, Contracts, WHS and Discrimination. While vaccinations on one hand could be considered a control measure for health and safety, similar to Hi-Vis or on-site traffic flow systems, they must also be viewed in the context of both Common Law as well as legislative provisions under the Fair Work Act 2009 (Cth) and the Disability Discrimination Act 1992 (Cth) in order to determine the validity of a position on vaccinations in the workplace. Potential cultural, industrial and Workers’ Compensation impacts should also be considered.

• For employers who are not subject to public health orders on vaccinations, their ability to issue enforceable directions on mandatory vaccinations centres on the common law test of whether it is ‘lawful and reasonable’. The FWO provides advice on what is ‘lawful and reasonable’ and also points to the four-tiered employer category guideline to help determine reasonableness.
• Adopting a WHS lens, employers also need to determine whether they can meet their non-delegable obligations to provide a safe work environment if they allow unvaccinated workers in their workplaces and, whether mandatory vaccination would be a ‘reasonably practicable’ step to keep employees safe. SafeWork provides advice on considerations to determine whether mandatory vaccination is likely a ‘reasonably practicable’ step. 
• The Disability Discrimination Act 1992 must also be considered to ensure the directions do not discriminate against a group of people who, for example, are unable to receive the vaccination due to accessibility or on medical grounds.
• Employers also need to ensure unvaccinated employees are not harassed or stigmatised. This may include potential financial implications if psychological Workers’ Compensation claims are submitted as a result of the perceived bullying around vaccinations or lack thereof. For example, in NSW an accepted claim under those circumstances would be one of the few injuries related to COVID that would impact upon an organisation’s Workers’ Compensation premium.
• Public Health Orders, Industrial Relations framework and Workers’ Compensation legislation are all formed at a state level. Employers will need to ensure they are aware of the changing landscape in each jurisdiction they operate in.
• WHS laws stipulate the requirement for employers to consult with their workforce before implementing policies that affect the health and well-being of employees. Likewise, all awards, enterprise agreements, and many other contracts outline consulting requirements on any significant workplace change.

Is there any legal precedence for employers in the private sector?

Not yet – but watch this space! A previous challenge in the aged care industry disputing the legality of mandatory flu vaccinations has failed at the Fair Work Commission in the case of Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156. The applicant sought remediation from the commission after her failure to provide a legitimate medical reason for not having an employer-mandated flu vaccination resulted in her dismissal. The test of whether the mandate was “reasonable and lawful” was examined and the applicant’s case was dismissed. 

As per the above timeline, the deadline that SPC has stipulated for its’ workforce to undertake mandatory COVID vaccinations will lapse in October 2021. Should any challenges to this policy arise, we may well see a large-scale test to the legality of employer-mandated vaccinations.  

Due to Australia’s fortunate position in relation to the low number of COVID fatalities, we are still in a grey area with respect to employers’ culpability relating to COVID control measures. However, it is foreseeable that we will reach a time when employees affected by COVID, or indeed the estates of those who’ve succumbed to the disease, will query the COVID controls set in place by their employers. Safety regulators will be asked to determine whether the employer took all ‘reasonably practicable’ steps to reduce the risk to their employees’ risk of exposure and transmission of the disease. 

For some employers, this may include a review of their directives and policies on vaccinations, including whether or not this was mandated.

We are here to support.

This is an untested environment all organisations are facing and it can have significant consequences if not managed properly. Howden is here to support you with the redesign of policies, training and risk assessments to determine what steps are ‘reasonably practicable’ in managing COVID-19 and ergonomic programs as you re-open the doors. Through outsourcing these issues to our experts, you can more clearly focus on getting your business operational, while having the peace of mind that you have the right COVID Safe framework in place to protect your business and employees.

Speak to our experts today to find out how your organisation can build and navigate these or any other policies concerning the health, safety and wellbeing of your employees.

*Please note this does not constitute legal advice and readers should seek legal advice about their individual circumstances.