Monday, 11 May 2020

Can Employers Mandate Staff Vaccinations?

On 17 March 2020, the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Bill 2020 (Vic) passed the Victorian Parliament and took effect from 25 March 2020.

The changes enable the Victorian Department of Health and Human Services to direct certain healthcare providers to require their employees or a class of employees, to be vaccinated or demonstrate immunity against specified diseases.

All healthcare workers in public, denominational and private hospitals, and ambulance services with direct patient contact will be required to be vaccinated. This includes doctors, nurses, paramedics, dentists, orderlies, cleaners, and public sector residential aged care services staff.

If a healthcare provider fails to comply with a direction from the Department, they could face suspension or revocation of registration as a health service establishment.

The Department may apply certain conditions or qualifications when making a direction to a healthcare provider. For example, the Department direction may specify different vaccination requirements that apply to different parts of a healthcare provider or may apply after a specified date.

Any action a healthcare employer takes in compliance with a direction from the Department in these circumstances will not amount to discrimination based on political and/or religious belief or activity under equal opportunity legislation.

In response to the COVID-19 pandemic, new rules have also commenced in all States and Territories requiring anyone entering an aged care facility, including employees, to have been vaccinated against influenza.

Can employers in other industries mandate staff vaccinations?

Outside of a direction to Victorian healthcare providers under this new legislation and the new rules surrounding entry to aged care facilities, the law in Victoria is somewhat grey as to whether an employer can mandate their employees to receive vaccinations.  While a particular vaccination may be considered an important aspect of the employer meeting its safety obligations, mandating an employee to receive a vaccination may give rise to alleged discrimination on the basis of political and/or religious belief or activity.

Whether an employer can reasonably direct an employee to be vaccinated will depend on a number of factors, including the type of work being performed and whether there is an increased risk associated with that role should the employee fail to be vaccinated. In the absence of a legislative basis for employers to require employees to be vaccinated, employers should take care in implementing a policy mandating vaccinations, and if doing so, should give consideration to:

  1. Which vaccinations would staff be required to have? This is likely to depend on your industry and working environment, and, for example, whether your staff are working with vulnerable people.
  2. How will you respond if an employee refuses a vaccination or refuses to provide evidence that they have already been immunised or have a contraindication to a vaccination? We suggest employers manage this on a case by case basis, bearing in mind that it will not always constitute a valid reason for dismissal if an employee refuses to be vaccinated, particularly if it is not a legal requirement and is not otherwise reasonable in the circumstances.

For industries/workplaces that are not subject to the mandatory vaccinations referred to above, it may be more appropriate for the employer to make available free vaccinations to staff as an encouragement for them to be vaccinated and to strongly recommend that they avail themselves of this opportunity.

Additionally, particularly bearing in mind measures that have been implemented in light of covid-19, focusing on good hygiene practices will also assist in lowering the risk of infection at a workplace should employees decline to be vaccinated.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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