Earlier this week, the National Cabinet announced that all residential aged care workers will be required to get a COVID-19 vaccine. The rationale underlying this decision was clear, with the Commonwealth Chief Medical Officer commenting that amongst aged care workers, only 33% had voluntarily taken up the vaccine. This, in light of transmission across Australia of the more contagious Delta variant of COVID-19, has clearly spurred the National Cabinet to action.
Ultimately, this is a welcome development which will provide clarity, not only to employers in the aged care sector, but also in other high risk industries, such as aviation, interstate freight transport/logistics and mining, with respect to the measures they will need to take to manage the risk of COVID-19 transmission in their workplaces. In the past months, many employers in these industries have grappled with the question of whether they can make the COVID-19 vaccine mandatory and if so, whether they need to in order to uphold their duty of care and health and safety obligations to their workers. As we set out below in this article, these recent developments regarding mandatory vaccination, both in Australia and internationally, highlight the need, at all times, for a risk-based approach to COVID-19.
But this need for a risk-based approach does not extend only to managing the health and safety risks associated with COVID-19 transmission. As we discuss further on in this article, another dimension that businesses need to consider is how they will manage the risks of discrimination if they do decide to direct their workers to get the vaccine.
The National Cabinet has flagged that by mid-September 2021, all residential aged care workers must have at least the first dose of a COVID-19 vaccine. Although the exact mechanisms have not yet been put in place, the Prime Minister stated in a press conference that it will be implemented “preferably using the same system” for the influenza vaccine – that is, State/Territory public health orders. We will likely see these rolled out shortly in all Australian jurisdictions. However, the Federal Government has flagged that they will be working with the States and Territories to ensure compliance, owing to the relationship the Federal Government has with providers of aged care services.
To support the requirement for mandatory vaccination, the Federal Government is rolling out an employee support grant which targets casual workers and facilitating off-site vaccination. Specifically, residential aged care facilities will receive $80 per dose for casual employees who are required to go off-site for vaccination and one day’s leave (at a rate of $185) if they become unwell, although this will only be for up to a quarter of the aged care provider’s total number of casuals. The residential aged care facility will also receive up to $500 for ‘flexible vaccination facilitation costs’, such as transport services.
The National Cabinet flagged that while the requirement for residential aged care workers to be vaccinated does not include disability care workers, this does not mean that they have ruled this industry out and rather, are awaiting further advice from the Australian Health Protection Principal Committee (AHPPC). Advice is also being sought in relation to mandatory vaccines for aviation, interstate freight transport and mining (FIFO) workers – other high risk industries.
The National Cabinet also announced that they endorse the AHPPC’s advice, which recommends mandatory vaccines for all hotel quarantine workers. The Prime Minister’s subsequent comments in a press conference that this will be a State and Territory matter is reflected by the status of the two current public health orders in NSW and WA, which require the vaccine as a condition of working in hotel quarantine. Presently, no timeline has been given for when this ought to be effected for hotel quarantine workers in the balance of the States and Territories.
While these high risk industries are likely slated for future vaccine requirements, there is no indication that the Federal Government will provide financial support to incentivise and assist employees (particularly casual employees) in getting the vaccine and/or dealing with the financial loss from days off work in the event that they experience side effects.
Internationally, countries have not yet scrambled to make the COVID-19 vaccine mandatory. Supply, of course, remains an issue, as does a reluctance to use a heavy-handed approach which would require citizens to receive a vaccine. Making the COVID-19 vaccine mandatory is also a relatively new phenomenon, with the first Australian jurisdiction (QLD) doing so on 31 March 2021 for employees in the health service. Italy, credited as being the first European country to make the COVID-19 vaccine mandatory did so shortly after, on 1 April 2021, for health care workers.
The approach is varied. Other countries have prioritised, in the first instance, making the vaccine mandatory for care workers. For example, England announced in mid-June that workers in care homes, as well as anyone who seeks to enter and work in a care home (such as a tradesperson), would need to have had the COVID-19 vaccine. In the past week, Russian authorities announced that COVID-19 vaccinations would be made mandatory for workers in public-facing industries.
At this stage, it is too early to determine whether we will see a trend in making the vaccine mandatory across any one particular industry, although the high risk industries continue to appear. However, each country has their own specific considerations and public health environment. By way of example, Russia’s relatively broad approach is clearly based on the nation’s current struggle with a third wave of COVID-19, combined with the increased transmissibility of the Delta variant and a population with larger numbers of vaccine-sceptics. In contrast, Australian jurisdictions have responded to their own needs. WA, as set out above, required hotel quarantine workers to get the vaccine after a concerningly low uptake was reported (only three in five workers had consented to get the vaccine).
Further, the notion of mandatory vaccinations is not uniformly accepted across the globe. In countries which do practice mandatory vaccination programs (such as childhood vaccines), these programs will always be subject to that jurisdiction’s particular laws regarding discrimination and human rights.
What the above really drives home is that COVID-19 needs to be dealt with, across all industries, using a risk-based approach. Employers need to ensure that their health and safety policies and procedures (including any requirement to get the vaccine, but also generally any measures targeted at the risk of COVID-19 transmission) are only formulated once they have adequately assessed the risk.
In practice, this means that employers will need to weigh up all the competing considerations before they make a decision. This will include:
Ultimately, employers need to ensure that regardless of whether the COVID-19 vaccine is made mandatory for their industry, they follow a structured risk based approach when determining what steps to take, which may need to be scaled up or down depending on the public health situation at a given time. While the certainty provided to residential aged care facilities by this recent decision is surely appreciated, employers in high risk industries and industries generally need to prepare for the eventuality that the COVID-19 vaccine will not be made mandatory. With vaccination progressing slowly in Australia, employers need to ensure that they are prepared to live and work in the pandemic for the present time – and this, of course, means ensuring that they have taken other steps to ensure the health and safety of their workers.
Of course, weighing up the above factors and considering all the variables may in fact lead some businesses to decide that the right course forward is to direct their employees to receive the vaccine. But not all workers can, or want, to be vaccinated. People with medical conditions and who oppose vaccines on personal or religious grounds are the most obvious examples who will fall into this category. Accordingly, businesses will need to have a risk-based approach to manage potential discrimination risks.
What does a risk-based approach look like when we consider discrimination risks? The first step lies in understanding the discrimination law in the jurisdiction your business operates. Each Australian jurisdiction has its own discrimination law/s and they are not uniform. There are differences between the Commonwealth, State and Territory laws which affect what is considered as unlawful discrimination and what exceptions exist. Even where the discrimination law might operate such that it would prevent a business from directing an employee to get the COVID-19 vaccine, it may be permitted if not requiring this would cause an ‘unjustifiable hardship’ (with the caveat that, as set out above, the laws are drafted in the same terms). This means that businesses need to, again, weigh up all the competing considerations as to why it may need to ask its employees to get a vaccine. This decision will almost certainly rely on a current health and safety risk assessment, hand in hand with the above section.
Once a business understands its position under the relevant discrimination law/s, only then can it ensure that it has pre-empted any potential discrimination claims and has policies and procedures in place which will allow it to confidentially and sensitively handle any issues raised, and determine whether it will press the direction for the worker to be vaccinated. In this way, potential risks associated with discrimination claims arising from a direction to get the vaccine can be reduced by adopting a risk-based approach.
 Australian Health Protection Principal Committee, Statement on vaccinating and testing quarantine workers (29 June 2021).