The Do’s and Don’ts of COVID-19 Vaccination Policies10 September 2021
By Sagorika Platel (Associate)
State and Federal Governments have made it quite clear that except for a select few sectors, such as childcare and residential aged care, it will not make COVID-19 vaccinations mandatory.
Where then does this leave employers who are concerned about the welfare of their workers and mindful of their Occupational Health and Safety obligations?
Employers have a whole host of legal duties they need to be mindful of, and it is not always clear whether the ‘doing’ or ‘not doing’ of something will result in compliance with one statute but non-compliance with another.
An obvious example is the tension between the duty to ensure a safe working environment by mandating COVID-19 vaccinations in the workplace and yet be on the correct side of anti-discrimination laws.
In Victoria, employers have onerous non-delegable obligations to do everything that is reasonably practicable to ensure the safety of their workers, user of their services and user of premises they control (see sections 21, 23 and 26 of the Occupational Health and Safety Act 2004 (Vic) (OH&S Act)).
Additionally, employers should be mindful that where there is a death of a worker or user of their service/premises and this resulted from a great falling short of the standard of care that a reasonable person would have taken in the circumstances, the employer will be liable for the newly introduced offence of industrial manslaughter (s39G of the OH&S Act).
Creating COVID-19 vaccination policies is a robust way to ensure the safety of the workforce during the present pandemic. This is especially true in situations where workers are at risk of serious illness or death as a result of contracting COVID-19 in the course of their employment. What then are the pit-falls?
Unfortunately, the solution to this question is not straightforward and requires a tailored approach by taking into account the nature and characteristic of the employer’s business and industry.
How an employer approaches the issue of requiring their workers to be vaccinated against COVID-19, or, creating COVID-19 vaccination policies, requires an understanding of their legal obligations.
Employers should be mindful that they have very specific obligations, relevant to the topic of COVID-19 vaccination, under the Privacy Act 1988 (Cth), Health Records Act 2001 (Vic), Fair Work Act 2009 (Cth) (FW Act) and the Equal Opportunity Act 2010 (Vic) (EO Act).
These obligations may require the employer to handle certain medical information in a specific way, or, it may require the employer to avoid discriminatory conduct which could expose the business to an Adverse Action claim under Part 3-1 of the FW Act or discrimination proceedings under section 18 of the EO Act.
In addition to the above, employers should have regard to the Australian Health Protection Principal Committee (AHPPC) statements, as well as their rights and liabilities under contract, Enterprise Agreements, Awards, and at Common Law.
For example, did you know that where it is reasonable and lawful to do so, an employer may direct an employee to be vaccinated? If an employee refuses this direction, then the employer may legitimately dismiss that employee for failure to comply with a lawful and reasonable direction.
Tailoring your policies
With our expertise in Worker’s Compensation, Occupational Health and Safety and Industrial Relations laws, Hentys Lawyers are expertly placed to draft, review or provide you with guidance about your workplace COVID-19 vaccination policies and queries.
In so doing, we would be able to advise you about whether, in all the circumstances, it would be reasonable for your business to mandate COVID-19 vaccinations, or in the alternative, provide you with sound strategic advice to minimise you exposure to litigation.
In advising you, we would carefully consider:
- the characteristics of your workplace (such as physical space between employees), the people in the workplace, and whether there is a heightened risk that they will suffer severe symptoms if they contract COVID-19;
- whether alternative measures to mandating COVID-19 vaccination is preferable for the purposes of compliance with various statutes, rules and regulations;
- what the present advice from work health and safety bodies are;
- the terms of any Awards, Enterprise Agreements and/or contract under which your employees operate;
- your rights and liability when workers refuse to be vaccinated; and
- the ramifications to you and your business should you fail to take positive steps to mandate or do everything that is reasonable to encourage your workers to be vaccinated against COVID-19.
The additional dimension
There is of course an additional dimension to the debate about mandatory COVID-19 vaccinations in the workplace. This dimension involves situations where a worker suffers serious side-effects as a result of the vaccine.
Guidance on this topic is evolving, but at present, the Australian Government is developing a claims scheme for people who suffer a moderate to significant impact following an adverse reaction to the COVID-19 vaccine.
While this aspect of the topic is still somewhat of a grey area, we will, never-the-less, be able to provide you with guidance about returning a worker back to work in compliance with your statutory responsibilities.
Hentys Lawyers invites you to contact one of its team members to guide you through the do’s and don’ts of COVID-19 workplace vaccination policies and to provide you with strategic advice to safeguard against risks to your business.