Opinion

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Can general practices mandate staff COVID vaccinations?

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Staff vaccination in a healthcare setting is a hot topic of late, with many employers unsure about their rights and responsibilities should employees refuse to receive a COVID-19 vaccination.
 
At the time of writing this article (it’s a fast-changing environment) key issues are still unclear. The Federal Government is encouraging businesses to make their own assessment and decisions but has provided limited formal guidance on their rights and protections.
 
Without legal precedents on the matter, employers are faced with the need to make a decision, roll the dice and see where it lands.
 
Large employer SPC is paving the way and it’s likely, as a result of inevitable legal action against such employers, that we’ll soon see legal decrees by the courts which will assist employers to better understand their legal rights on the topic.
 
The following information that may help health practice employers in making these complex decisions.
 
Regulations and legislation
COVID-19 is an evolving situation subject to change as new information and developing consequences of medical, legal, economic or social conditions regularly arises, requiring deeper consideration of existing regulations. Consequently, some employer decisions may be subjected to a case-by-case review by relevant authorities.
 
Vaccination mandates
These are not currently permissible unless a state or territory government legislates to cover specific circumstances, such as aged care, airport workers, certain healthcare settings etc.
 
At this point, there is no mandate requiring health practices to force employees to be vaccinated. However, some legislation contains guidance on which employers may have reasonable grounds for mandating – but these are (of course) subject to case-by-case review.
 
Fair Work Act
Current employment contracts may be amended to include mandatory vaccination, but its enforceability would be subject to Fair Work assessment on a case-by-case basis. It is unclear as to whether this is a pre-requisite to mandating or an action that will be undertaken if an objection is raised by an individual or group, such as a union.
 
(WHS) Safe environment
Current work health and safety (WHS) legislation requires employers to maintain a safe workplace. As such, proving COVID-19 is a potential risk to staff/patients/visitors – via a comprehensive risk assessment that must be documented and a register maintained – the employer may require employees to be vaccinated, even as a contract term (existing or by amendment).
 
However, the WHS risk assessment example does not cover the possible risk of COVID-19 being acquired from an unvaccinated (particularly anti-vaxxer) staff member and opportunities to place unvaccinated staff in low-risk areas or jobs should be explored.
 
An alternative requirement to mandating staff vaccination is that unvaccinated workers may be required to attend regular COVID tests and present ‘negative’ results. But this could be impractical and costly as the employer must allow time off to attend tests that may have long queues and practice resources will be reduced by this absence. In-house testing may be a possibility at the practice itself.
 
Employers also have the right to seek evidence of the specific reason or reasons why an employee refuses vaccination (eg medical condition, religious grounds…). When/if mandating vaccination, the employer must take care not to offend anti-discrimination laws.
 
icare (workers’ compensation)
There are processes and responsibilities employees have to support their respective claims, including evidence that COVID-19 was indeed acquired in the workplace and not while the employee was engaged otherwise. icare is still working with regulators to determine changes to processes.
 
Safework Australia
Healthcare workers, other than those prioritised in phase 1a of the national vaccine rollout, include (but are not limited to) those working in hospitals, general practices, pharmacies, allied health, and other healthcare services. These workers are a priority population for vaccination in phase 1b of the rollout strategy.
 
This organisation’s advice, role and the national vaccine rollout strategy confirms recognition of medical practices as a high priority, thereby deserving serious consideration by employers and employees when deciding to mandate vaccination.
 
The decision to mandate
As most critical decisions may be subject to case-by-case review, it is advisable to submit such opinions for authorisation by the relevant government authority.
 
As this process may result in one or several government authorities’ convening to reach an agreed decision, it could delay any proposed, earlier action.
 
There will still be outstanding decisions for employers to consider the:

• practicality of moving unvaccinated, including dissenting, staff to a low-risk work environment
• practicality and cost of requiring regular COVID testing.

If the above options are not practical or possible, it is important to consider what action should be taken in respect of staff who do not wish to be vaccinated – other than those with legitimate reasons. If termination is considered the only option, Unfair Dismissal regulations (Fair Work Act) must be considered.
 
A recent article published by Nine newspapers quoted Arthur Moses SC, who said there is good reason to think that an employer is within its rights to direct workers whose job requires contact with vulnerable members of the community to get vaccinated.
 
He also stated ‘there is a term implied in law in every contract of employment requiring an employee to obey the “lawful and reasonable directions” of their employer’.
 
The Fair Work Ombudsman has also updated relevant guidelines, ranking industries into four tiers, with Tier 2 being employees who interact with vulnerable people, such as healthcare and aged care workers).
 
The guidelines state it is ‘unlikely to be reasonable’ to make Tier 4 workers (minimal face-to-face interaction) get vaccinated, which further suggests it may be ‘likely to be reasonable’ to mandate vaccination for Tier 2 employees. 
 
Mr Moses suggested relevant factors for employers making the decision include:
 

• whether a workplace is open plan
• the number of employees working in the space and whether they are required to work in proximity to one another
• whether the job would expose unvaccinated employees to many people
• health and safety laws that require employers to ensure health and safety conditions for employees.

Summary
If an employee refuses to be vaccinated, you might want to consider whether they can be moved so they have less exposure to other people and whether you should require them to provide regular negative COVID test results. 
 
If that is not practical or possible and you feel you have to let the employee go in order to protect your workplace and the people entering it, seek legal advice on unfair dismissal/anti-discrimination action that you may be exposed to prior to terminating staff.
 
Karen Crouch is Managing Director of Health Practice Creations Group.
 
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COVID-19 general practice mandatory vaccination

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