Want to Introduce a No Covid Jab No Job Policy? Then consider this!

You may think the government imposed lockdowns and restrictions, wide reporting of COVID-19 cases and government encouragement to be vaccinated would translate to employers being able to mandate COVID-19 vaccinations at the workplace.

However, this is not necessarily the case. Unless a government health directive imposes compulsory COVID-19 vaccinations in certain industries or occupations such as in aged care, then the ability to enforce vaccinations will depend upon existing workplace legislation and associated case law. There are range of legislative provisions that apply in this regard.

Workplace health and safety legislation places a duty on employers to eliminate or if not possible, minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 at the workplace. This is undertaken by implementing control measures which requires an employer to take action to eliminate or minimise health and safety risks so far as is reasonably practicable. A hierarchy of control measures is set out in various regulations and codes of practices to assist duty holders to select the highest control measures reasonably practicable.

The assessment of risk in the context of a range of COVID-19 control measures would entail:

• undertaking a risk assessment of your business to identify those workers who are at risk and the sources of those risks;
• consideration of available control measures and how these will assist to manage those risks;
• consultation with workers and health and safety representatives; and
• determination of control measures that are reasonably practicable for implementation at the workplace.

The resultant control measures may or may not require employees to be vaccinated against COVID-19. However, it may be the case that those that are not able to be vaccinated for health reasons may require other control measures to be implemented.

Workers’ compensation arrangements differ across jurisdictions, however, generally a worker will be able to make a valid workcover claim if falling within the category of an employee or a deemed worker and has contracted COVID-19 out of, or in the course of the employment. This may extend to journey claims where an employee is travelling between their home and the workplace. However, in the absence of contact tracing, it may be difficult for a worker to prove a link with work where the worker is also undoubtably involved in non-work activities.

On 13 May 2021, Safe Work Australia published data about COVID-19 related workers’ compensation claims across Australia from 1 January to 31 December 2020.

During this period there were:

• 1,222 claims (ie. 809 claims in Victoria and 161 claims in NSW),
• 974 were accepted,
• 127 were rejected and
• 121 were pending.

Of the 1095 claims that were accepted or pending, 75% were for contraction of COVID-19, 5% were for testing or isolation claims and 19% were mental health claims related to COVID-19.

This data indicates that COVID-19 is compensable as a workplace illness under workers’ compensation legislation and that employers should take steps to prevent and/or minimise these claims.

Discrimination law has always been a minefield at the workplace and will no doubt form the basis of claims with respect to COVID-19 vaccination requirements. Any claim of discrimination will likely be indirect discrimination as the employer would be requiring employees to comply with a general requirement or condition. There are a range of likely grounds for discrimination such as pregnancy, impairment or disability and possibly religious belief.

In order to defend against a claim, the employer would need to prove that the COVID-19 vaccination requirement is reasonable in the circumstances of the case. Workplace health and safety would be a primary defence so many of the factors already outlined above in relation to risk assessment and control measures will be relevant here. Other defences may include whether it is an inherent requirement of the job, however this will likely be governed by any applicable government health directive or licensing requirement. It is important to note that in cases such as pregnancy and anaphylactic reaction an employee may not be able to have a COVID-19 vaccination. In this instance other adequate control measures will need to be explored.

The Fair Work Commission (‘FWC’) has determined a number of cases where employers have dismissed employees due to refusing to comply with mandatory influenza vaccination policies. The reasoning in these cases is considered relevant to any future cases about COVID-19 vaccination.

The three leading cases are currently Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156, Jennifer Kimber v Sapphire Coast Community Aged Care Ltd {2021] FWC 1818 (‘Sapphire Coast Case’) (appeal has been lodged) and Maria Corazon Glover v Ozcare [2021] FWC 2989.

While the FWC determined in all these cases that there was a valid reason for dismissal, it must be noted that these employers operated in high risk environments such as child and aged care. Further, in the Sapphire Coast case there was an applicable NSW public health order mandating influenza vaccination although it was possible to apply for a health exemption.

It is important to mention that on 28 June 2021, the Prime Minister issued a media statement advising that National Cabinet had agreed to mandate COVID-19 vaccinations for residential aged care workers as a condition of work in an aged care facility. The first dose of the COVID-19 vaccine must be administered by mid-September 2021.

Where a government health directive is in place then the implementation of a mandatory COVID-19 vaccination policy at the workplace will be straight forward.

However, if this is not the case, then employers will need to consider issues concerning WHS, workers’ compensation, discrimination and potentially whether there would be a valid reason for dismissal for non-compliance.

Protection against COVID-19 would need to be considered in the context of a range of adequate control measures which may or may not include compulsory vaccination. It would not be possible to undertake a broad approach to implementation as each case would need to be judged on its own merits.

If you would like to know more about the implementation of COVID-19 policies, please contact us and a Mapien Workplace Strategist will be in touch within 24 hours.