#351 Fact sheet - Mandatory vaccination in medical practices
22 September 2021
Employers face possible legal risks in imposing a mandatory requirement that employees are vaccinated against COVID-19. Issues relating to mandatory vaccination have not, to date, been decided by the courts so it is not possible to state with confidence a definitive legal position.
In general, an employer can give direction to its employees, and employees must comply with directions, if they are lawful and reasonable. A medical practice could direct its employees to be vaccinated if such a direction is both lawful and reasonable. Whether or not such a direction will be reasonable will depend on a number of factors. Factors that weigh in favour of a direction being reasonable include:
- Medical practices are in most cases an essential service that needs to continue to operate for the public good regardless of lockdowns or community spread of disease.
- Medical practices (as is the case with any employer) have a statutory and common law obligation to ensure the health, safety and welfare of their employees and others who attend their workplace, to the extent that it is reasonably practicable to do so.
- Medical practitioners owe a duty of care to their patients, and may therefore also be exposed to the risk of a negligence action in the event that a patient contracted COVID-19 through contact with an infected member of practice staff and the medical practitioner did not discharge that duty of care.
- Employees of medical practices will generally be required to have close contact with at-risk patients who may be vulnerable to the health impacts of COVID-19.
- Phase 3 trials and real-world evidence have shown that vaccination is moderately to highly effective in reducing COVID-19 infectivity, by preventing infection and through reducing viral shedding.
The Fair Work Ombudsman (FWO) has provided guidance on mandatory vaccination in workplaces. In most cases, employees of medical practices would fall under the FWO’s definition of Tier 2 work, which is where employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19. In the case of Tier 2 employees an employer’s direction to employees to provide proof of COVID-19 vaccination is more likely to be reasonable, given the increased risk of employees giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.
This approach is consistent with the position adopted by the Fair Work Commission (FWC) in a number of cases involving mandatory influenza vaccinations (Barber v Goodstart Learning, Kimber v Sapphire Coast Community Aged Care, Glover v Ozcare, and Arnold v Goodstart Learning). In each of those decisions the Commission made it clear that the outcome should not be extrapolated to apply to COVID-19 vaccines, but it is reasonably clear that the view that has been adopted is that requiring an employee to have a flu vaccination in higher risk industries, and being able to take action against an employee who refuses to do so (without sufficient medical evidence) is likely to be considered to be a lawful and reasonable direction that can form a valid basis for the termination of employment.
In Victoria, a public health order currently requires mandatory vaccination of workers in residential aged care facilities. Unless an exception applies, workers could include medical practitioners who attend residential aged care facilities to provide care to residents. A direction by an employer to a medical practitioner who attends a residential aged care facility to be vaccinated is likely to be a lawful and reasonable direction.
Possible legal risks
The legal risks an employer could face in implementing a mandatory vaccination policy for existing employees (at the time of writing all untested) include:
- Discrimination action, possibly based on alleged unlawful discrimination on the basis of an attribute, such as disability, or political or religious belief or activity.
- Unfair dismissal action in the FWC, alleging that refusal to comply with a requirement to be vaccinated is not a valid reason for termination.
- General protections action in the FWC, based on alleged unlawful discrimination.
- Breach of contract claim, based on the employer’s unilateral variation of the terms of the contract of employment.
The Commonwealth Privacy Commissioner has suggested that employers may contravene the Privacy Act 1988 (Cth) by requiring employees to disclose their vaccination status. In the practical application of a vaccination policy an employee may choose not to consent to disclosing their vaccination status, in which case it may be that disclosure cannot be required, and it would be necessary to treat them as though they are unvaccinated. This may have consequences for the way the employees do their work or for their ongoing employment.
There are possible risks related to alleged unlawful discrimination that would arise from imposing an unreasonable mandatory requirement of proof of current COVID-19 vaccination status as a condition of employment.
There is also a risk that employers could be exposed to a workers compensation claim, given the apparent links between vaccinations and serious blood clotting disorders with the Astra-Zeneca vaccine, and cardiac disorders with Pfizer. If an employee suffered from a side effect of vaccination, and there was a clear link between the vaccination and their employment, such as their employer encouraging, inducing or requiring them to be vaccinated, the employee may succeed in a worker’s compensation claim or a common law claim (based on fault if a mandatory vaccination was not warranted) against the employer. Similarly, an employee who contracts the COVID-19 virus in connection with work may also succeed in a worker’s compensation or a common law claim against the employer.
Practical implementation of a mandatory vaccination policy
Accepting that a mandatory COVID-19 vaccination policy could constitute a lawful and reasonable direction, there is a number of practical and legal considerations in the implementation of the policy.
It is recommended that the direction be principally set out in a workplace policy, and supported by appropriate clauses in contracts of employment. Compliance with a workplace policy can be the subject of a lawful and reasonable direction, with which an employee must comply. The policy may need to change over time, for example to accommodate a requirement for booster doses, if indicated, and there would be scope to amend a workplace policy to deal with current circumstances.
An effective policy would cover:
- any requirement of mandatory vaccination
- proof of vaccination
- privacy issues
- applicable processes, including requests for exemption.
The Awards that cover employees of medical practices oblige employers to consult with employees when an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees. “Significant effects” is defined to include termination of employment. It would be very unwise to implement a mandatory vaccination policy which could ultimately lead to termination of employment without undertaking a process of consultation.
Testing the reasonableness of the direction
A defence to a possible unlawful discrimination claim would be that vaccination is an inherent requirement of the employee’s role for which there are no reasonable adjustments in the circumstances. Similarly, if implementation of a policy led to termination of employment, a defence would be that non-compliance with a vaccination policy is a valid reason for termination.
If that defence is to be available, genuine consideration would need to be given to whether the risk of an infected employee infecting a vulnerable patient could be eliminated by alternative measures such as subjecting the employee to regular testing; requiring the employee to wear a mask such as an N95 mask at all times in the workplace; effective social distancing, or whether they can work remotely or with telehealth arrangements.
Availability of vaccine
Timing must be considered. It would arguably not be reasonable to impose a double dose vaccination requirement on an employee who did not have practical access to vaccination because of vaccine availability, and must wait the required time to be eligible to receive their second dose.
Where an employee refuses to comply
There may be numerous reasons why an employee could refuse a vaccination. Each instance of refusal should be managed on a case by case basis.
The employer should ask the employee for their reason for refusal and be prepared to discuss the reason with them. Where mandatory vaccination is a reasonable direction, it should also be reasonable to require an employee to provide reasons for their refusal to comply, and any evidence which supports that reason.
If an employee believes that there is a medical reason for them not to be required to be vaccinated they can be assessed by a general practitioner, who is able to issue a medical exemption if their concerns are valid.
Disability, religious or political beliefs are included in the protected attributes under anti–discrimination legislation and may be a proper basis for refusal.
In cases of refusal, it would be important to consider whether the alternatives to vaccination (subjecting the employee to regularly testing; requiring the employee to wear a mask such as an N95 mask at all times in the workplace; effective social distancing, or whether they can work remotely or with telehealth arrangements) would be effective in providing vulnerable patients with protection.
Because individual employee and practice circumstances will be different in each case, legal advice should be obtained when managing instances of refusal to comply.
Public Health Directions
The Victorian Government has foreshadowed an intention to extend to other practices its Public Health Direction on mandatory COVID-19 vaccination of workers in residential aged care facilities and on construction sites. That has not occurred to date. If the Direction is extended to medical practices this advice will be revised to take the Direction into account.
DISCLAIMER: The above is not intended to be, and should not be taken to be, legal advice. It is intended only to provide a general summary of the major considerations that would need to be taken into account, and is not intended to be comprehensive. Specific legal advice should be sought in particular cases.