Whether or not to get a COVID vaccine is a polarising topic, particularly given the availability of vaccines and confusing government health advice. Back in June, the government gave aged care workers notice that they need to get vaccinated or face being unable to return to work. Now some businesses are taking matters into their own hands due to the lack of government intervention. The question is, can you be forced to get vaccinated or risk losing your job if you don’t? Attwood Marshall Lawyers Partner and QLD Law Society Accredited Specialist in Compensation Law, Jeremy Roche, discusses the issue.
Can employers demand you get the jab?
The Australian Federal Government’s position is that COVID-19 vaccinations are voluntary for most Australians. Even though the government has not come out and said you must get vaccinated, the general goal is to have as many Australians as possible choose to get either the AstraZeneca, Pfizer, or soon to be released Moderna COVID-19 vaccination. Recent statements by the Prime Minister indicate the federal government is not going to legislate that vaccinations are mandatory, however Federal authorities have now told companies they have a right to ask their workers if they have been vaccinated. This has caused much debate around privacy issues. Employers are calling for more clarity around what they can do if they want to impose a vaccination requirement within their workplace.
There are certain industries in which the government has made it mandatory for staff to receive COVID-19 vaccinations in order to continue to work in their field, including residential aged care workers. The NSW Health Minister, Brad Hazzard, is currently considering whether or not to make it mandatory for all health workers to be vaccinated, as the NSW COVID-19 outbreak continues to worsen, with outbreaks linked to nursing staff in hospitals.
For the majority of workplaces across all other industries, employers cannot force their employees to be vaccinated against COVID-19. Employers should be careful about imposing mandatory COVID-19 vaccination policies on their staff. It could lead to claims for unfair dismissal or damages for discrimination.
There are limited circumstances where an employer may require their workers to be vaccinated and should take each employee’s unique situation into account.
It really comes down to:
- Whether a law (such as a state public health law) requires a worker to be vaccinated. Employers and their workers need to comply with public health orders that apply to them;
- Whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations, such as health care staff who require vaccinations for hepatitis B and chickenpox;
- If no law, agreement, or employment contract applies that requires vaccination, determining whether it would be lawful for an employer to force their workers to be vaccinated.
Work health and safety regulators have stated that employers are unlikely to be required to force workers to be vaccinated and should only do so where there is public health advice supports this.
Residential aged care workers and other high-risk industries
In June 2021, Prime Minister Scott Morrison announced that residential aged care workers had 10 weeks to get at least one dose of a COVID-19 vaccine if they wanted to continue working in the sector. The mandatory vaccination requirements applied to full-time, part-time and casual residential aged-care workers, volunteers engaged by facilities, and students on placement.
Despite the tall order, the vaccination rollout to the aged care workforce was completely bungled. As of 10th August 2021, it is reported that barely half of aged-care workers have been vaccinated, despite the upcoming deadline.
The aged care workforce is complex and is made up of workers in home care services, residential aged care facilities, disability support workers, community support professionals, registered nurses, and other operational and administrative staff.
It is estimated that there are approximately 150,000 aged care workers who provide at-home care to around 1 million older Australians in their own homes throughout Australia. The government revealed on Friday 23 July that they had no plan for vaccinating home care staff. The home care sector appears to have been completely left out when Prime Minister Scott Morrison announced his mandatory vaccine regime.
It seems that access to the vaccine still remains the number one barrier for aged care workers to get the jab, with industry and staff unions warning the government that lack of vaccination teams visiting aged care workplaces has been a contributor to the low vaccination uptake.
Aged care workers were given until mid-September to get their first dose under a partnership arrangement between the Commonwealth and state and territories. It is unclear what consequences will face workers who fail to get their vaccination by the deadline in September.
Businesses taking matters into their own hands
The recent case of food giant SPC Australia planning to force its workers to get COVID vaccines is a test case over whether businesses can indeed make their workers get vaccinated.
SPC is the first Australian business to announce the “no jab, no work” plan, which applies to their 450 Shepparton factory staff in Victoria. The policy means staff will face a vaccine requirement under the company’s workplace health and safety policy.
Unions have come out defending workers stating although they support vaccination, requiring staff to get vaccinated by the end of October is unrealistic. Enforcing a vaccination policy should only be taken based on proper health advice and risk assessment.
Unions have also called for indemnity to be offered to workers who suffer a side effect from the vaccine.
In NSW, eligible people are still waiting up to six weeks to get the jab.
It is expected that Australians under the age of 40 will be eligible for the Pfizer or Moderna vaccines by September or October 2021.
For anyone getting encouraged to get a jab now, the AstraZeneca vaccine is on offer on an “opt in” basis, however, vaccine hesitancy is widespread as a result of the significant miscommunication and confusion around the safety of AstraZeneca for anyone under the age of 60.
It is important for everyone to have that conversation with their health care provider before they decide which vaccine to get to make sure it is appropriate for them to do so.
Many commentators and business groups have called on the federal government to legislate for mandatory vaccinations to be introduced to the workplace, but the federal government has backed away from this (probably due to internal dissention within the LNP regarding COVID-19 lockdowns and some who oppose vaccinations and/or believe COVID is a conspiracy).
Construction workers encouraged to get vaccinated
From Wednesday 11th August 2021, construction sites across NSW will be able to operate at 50 per cent capacity with additional COVID Safe measures in place to help sustain the industry.
There will now be minimum vaccination requirements introduced for workers from the eight affected LGAs in NSW (local government areas) including Campbelltown, Canterbury-Bankstown, Blacktown, Cumberland, Fairfield, Liverpool, Georges River and Parramatta.
“We want workers back on the tools, but we need to continue to keep this virus at bay, and so by opening unoccupied worksites at 50 per cent capacity and vaccinating workers from within those affected LGAs, we can achieve both,” said Deputy Premier and Minister for Regional NSW, Industry and Trade John Barilaro.
In order to get back on the tools, construction workers from the affected LGAs must provide evidence that they have received:
- Two doses of a COVID-19 vaccine, whether it be the AstraZeneca, Pfizer or Moderna (when available) vaccine;
- One dose of a COVID-19 vaccine at least three weeks before attending work; or
- One dose of a COVID-19 vaccine and, if less than three weeks since vaccinated, produce a negative COVID-19 test in the previous 72 hours before returning to work.
Minister for Jobs, Investment, Tourism and Western Sydney Stuart Ayres said construction workers would be prioritised for vaccination at a clinic to be hosted at Sydney Olympic Park on Sunday 15 August.
These changes will take effect on Wednesday 11 August 2021. In the meantime, construction workers in the affected LGAs are urged to get their vaccination shot at the earliest opportunity, if they have not yet done so.
Exemptions will be in place for individuals with medical or other conditions that make vaccination unsuitable.
No-Fault Compensation Schemes and adverse reactions
General Practitioners are currently pushing for a no-fault compensation scheme, similar to those operating in other countries including the UK and USA. In June 2021, the National Immunisation Conference was held by the Public Health Association of Australia, where Professor Paul Kelly, Australia’s Chief Medical Office confirmed the introduction of a no-fault vaccine injury compensation scheme (VICS) for COVID-19 vaccines administered in Australia.
A no-fault vaccine injury compensation scheme is designed to provide compensation to anyone who experiences rare but serious adverse reactions after receiving a COVID vaccine.
The no-fault scheme has not yet been finalised and the details are still currently being reviewed with the peak health bodies.
While the government argues that GPs are currently protected, there are many GPs who are hesitant to vaccinate people under the age of 60 with AstraZeneca with concerns there’s a lack of insurance to cover them should their patient experience an adverse reaction.
What happens if I get COVID-19 at work?
Vaccinated or not, if you contract COVID-19 in the workplace you may be eligible to make a WorkCover claim to assist with your recovery and any loss of income you may incur.
If you contract COVID-19 while working, in order to make a workers’ compensation claim, you need to prove:
- Your workplace is where you were exposed to and infected with COVID-19; and
- Your employer failed to take reasonable precautions to protect you from the virus.
Every workplace injury or illness is different. If you have suffered an injury or illness in the course of your work, including becoming unwell after contracting COVID-19 at your workplace, it is always recommended to speak to an experienced compensation lawyer at the earliest opportunity to find out where you stand.
Attwood Marshall Lawyers – supporting you through difficult times
As the government and businesses continue to navigate and react to these challenging times, and the community try to keep up with ever-changing health advice and recommendations, it can be difficult to know what your rights and obligations are.
As one of Australia’s leading Compensation Law firms, our team have extensive experience in handling all types of employment disputes, workers’ compensation claims, and personal injury matters.
If you are eligible to make a compensation claim, we can help you access the maximum amount of benefits you are entitled to so that you can get the treatment you need and get your life back on track.
If you believe you have been discriminated against, or if you have been unfairly dismissed from your workplace, or if you have suffered an injury or illness and want to make a workers’ compensation claim, our team can assess your claim and let you know what to expect from the start. We offer a free, no-obligation initial consultation. Contact our Compensation Law Department on 1800 621 071 at any time.