News flash: In April 2018, the Federal Government released a statement to requiring all aged care employer to provide for compulsory flu vaccinations. Stay tuned for the HR Breakfast Club analysis of this statement. The following article was written in December 2017.
With winter finally past, Australia is recovering after one of its worst outbreaks of influenza in recorded history, with over 175,000 recorded cases for 2017, at least 50% higher than last year’s. Many of the worst outbreaks occurred at nursing homes, with one facility in Victoria being home to seven residents who died of the infectious disease.
Believe it or not, there is no universal requirement across Australia that staff in care facilities be vaccinated against infectious diseases, either for their own protection or the protection of those in their care. As a result of this year’s epidemic, however, policymakers have instigated a number of investigations and policy announcements, particularly targeting nursing homes and health care facilities. Federal Minister for Health, Greg Hunt, is pushing for compulsory flu vaccinations for all workers in aged care facilities. The Australian Aged Care Quality Agency is in the process of conducting a survey to determine outbreak management amongst facilities, in addition to ascertaining the vaccination status of employees. Ahead of the curve, the head of the Australian Medical Association vocalised support for the vaccination of staff in the health sector in March this year.
In the public sphere, most states and territories have adopted a mandatory vaccination policy for staff working in close contact with patients or infectious materials. In the ACT, for example, all ACT Health staff are subject to a ‘Occupational Assessment, Screening and Vaccination Procedure’, which sets out a requirement for relevant staff to be immunised against a range of diseases including influenza, diphtheria and hepatitis B. Even students undertaking placements must provide documentary evidence of immunisation before commencement of employment.
We are unaware of how well these policies are enforced in practice in public health care facilities across the country. As a matter of law however, such policies are clearly enforceable by public sector employers: the policies form part of their lawful and reasonable directions to their employees. Failure to obey with a lawful and reasonable direction is misconduct under the relevant code of conduct provisions. Disciplinary consequences can follow. This extends to reassignment or termination of employment.
But the appetite for mandatory staff vaccinations in the private sector seems far patchier, for reasons that are unclear. Perhaps it’s the power of the anti-vaccination lobby. This is curious, because in a WHS context, if personal protective equipment (PPE) was issued to staff, employers couldn’t get away with accepting an employee saying: ‘I don’t like the PPE. I won’t wear it. I’ll take the risk if I get injured, or if I injure anyone else’.
Employers in aged care and health care have an undeniable duty of care to their staff, and to their patients. In essence, these duties require them to take all reasonable practicable steps to prevent foreseeable risk of harm or injury (to staff or patients). The science is now such that compulsory staff vaccinations for workers in aged, health and child care, seems one reasonably practicable step towards achieving this outcome. So, private sector employers who fail to make vaccination a compulsory precondition to employment for relevant employees are taking a huge legal and business risk. The ‘relevant’ employees extend beyond those with patient contact, including, for example, those dealing with laundry, food handling, ward cleaning and forensics.
To implement compulsory staff vaccination is not hard. Private sector employers simply need to develop a reasonable vaccination policy (complying with any consultation obligations), and then direct staff to comply with it. Staff who don’t comply within a reasonable time can, and should, have their employment reassigned or terminated (in accordance with any process for doing so in the employee’s contract, enterprise agreement or award). No matter if there is no Code of Conduct or no written term in their contract of employment: employees have an implied contractual obligation to obey lawful and reasonable directions. So long as they have had proper notice, I can’t see a successful unfair dismissal or discrimination claim ensuing.
It’s a free world. Employees can’t be forced to immunise against their will. But where the larger social good of public health is at stake, employees taking this position should expect that they will lose their hands-on health/aged/child care sector job, and move into a low risk employment. In the child care sector, the Federal Government has stepped in to create policies such as the ‘No Jab No Pay’ requirement, where child care benefits, rebates and some family tax benefits can only be claimed by parents whose children are fully immunised, subject to limited medical exceptions. Private sector employers in health, aged and child care might care to take a leaf out of that book for their hands-on staff.
In the Family Court, a number of high-profile cases have tested the waters in responding to mandatory vaccinations. In Duke-Randall & Randall  FamCA 126, for example, the court considered the rights of a father to immunise his daughter following a divorce from his wife with strong anti-vaccination views. The court found that due to the mother’s narrow focus on the issue of immunisation, her judgment was flawed ‘perhaps to the point where the best interests of her children have been subsumed'(at para ). As such, it was held that the existing Court Orders refraining the father from vaccinating his daughter were to be discharged, granting him liberty to vaccinate his child (at para ).
However, judgments regarding mandating the occurrence of a vaccination have not been commonly tested in an employment context. A reason for this may be …
Despite attempts by both medical groups and parliament to encourage mandatory vaccinations, particularly in the health sector, the health sector still does not
Therefore, a question arises as to whether employers can refuse to hire or retain employees on the basis of vaccination status.
Under the Discrimination Act 1991 (ACT), it is unlawful to discriminate against an individual on the grounds of a protected attribute, including (but not limited to) disability, gender identity or political conviction. There is no clear category in which vaccination status may be interpreted as ‘protected’ under the legislation.
However, some individuals do cite religion as a means to conscientiously object to being vaccinated
- Would compulsory vaccinations in the health industry amount to lawful and reasonable direction?
- Black v Warwick Shire Council â€“ P was not made aware of vaccination req for potential risk when working with cattle. Got really sick, made a claim in tort against his employer. Court held, following a similar line to Wyong Shire Council v Shirt, that ‘but for’ the negligence of the employer in failing to make the employee aware of the health risks of not being vaccinated, such sickness would not occur.
- However, might be slightly different in the health industry, dealing with illness and death frequently.
- Reasonable adjustment?
But even so, discrimination is allowed if it goes to a person’s ability to do the job. It will not be unlawful discrimination to refuse to employ a blind person as a truck driver â€“ the question really is whether or not the matter that is being used to determine the person’s employment really is directed to the work and whether or not any impediments can be overcome with ‘reasonable adjustment’
No Jab No Pay â€“ Immunisation Requirements for Family Assistance Payments
Infection control in Health Care services
Between October and November 2017, all residential aged care services will be required to participate in an assessment contact via an online survey tool which will be open for 14 days.
The survey tool was designed in consultation with the Office of Health Protection (Department of Health) and covers information about outbreak management and vaccination rates of residents and staff. This information will be used to assess the preparedness of services to respond to outbreaks of influenza and gastroenteritis.
Under the Fair Work Act 2009 (Cth), a claim of adverse action can be taken if an employee can establish their employer has breached any of their workplace rights.