Mandatory COVID-19 Vaccines: Revisited

In one of our previous circulars, we discussed the legality of implementing a mandatory COVID-19 vaccination policy for staff at your Practice. Our position was that, at that point in time, it was unlikely that a mandatory vaccination policy would be considered a ‘lawful and reasonable direction’. As such, we recommended Practices err on the side of caution, and consider adopting a policy of strongly encouraging staff to be vaccinated, given the clear health and safety benefits it provides. Since then, the situation has changed dramatically.

The Delta strain has entered Australian shores, cases have skyrocketed, and we are now coming to grips with the imminent reality of ‘living with COVID’. The National Plan makes it very clear what, in their opinion, ‘living with COVID’ should look like. Basically, it means vaccinating a significant majority of our population and easing restrictions for those who are vaccinated.

Some employers, such as Qantas and SPC, have mandated vaccinations for their workers. There are compelling reasons for doing so. Vaccinations protect their staff and stakeholders against COVID-19. Staff who are vaccinated are less likely to become seriously ill with COVID-19 and customers are more likely to feel comfortable engaging a business’ services if they are assured that all staff are vaccinated.

So you might be wondering: how have these circumstances changed the legal situation for mandatory vaccinations? In short, it depends on which State or Territory your Practice is located in and whether there is a public health order mandating COVID-19 vaccinations for health care workers in private Practices. Moreover, it is likely that as an employer you can make COVID-19 vaccinations mandatory for your staff if the direction is lawful and reasonable (for instance if there is a high risk of the transmission of COVID-19).

Let’s break down your rights and obligations with respect to COVID-19 vaccinations.

Victoria

The Victorian government recently implemented the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 7). The direction makes it clear that an owner of a healthcare facility (including private dental, orthodontic and medical Practices) must collect, record and hold vaccination information about the worker if the worker is, or may be scheduled to work on or after 15 October 2021.

From 15 October 2021, in order to work in a healthcare setting, all workers (including contractors and employees) must be able to provide evidence that they:

  • are fully vaccinated with two doses of the COVID-19 vaccine, or
  • have received the first dose and have a booking to receive the second dose by 15 December 2021, or
  • haven’t received any doses but have a booking to receive the first dose by 29 October 2021, or
  • have a medical exemption evidenced by an authorised medical practitioner.

We suggest you start collecting your workers’ vaccination status ASAP (if not already) and ensure you have all the information before 15 October 2021. If you permit a worker who is currently unvaccinated and has a booking to receive by the first dose deadline (29 October 2021) a dose of COVID-19 vaccine to work at the facility before partially vaccinated, you must take reasonable steps to ensure that the worker wears, at all times while on the premises, PPE that includes at a minimum, a surgical mask and face shield.

Some exceptions might apply including (but not limited to) the worker providing urgent medical care due to an emergency situation OR the worker was unable to become partially vaccinated before the first dose deadline because they were in self-quarantine but has a booking to receive, within 7 days of the end of the period of self-quarantine, a dose of a COVID-19 vaccine that will cause the worker to become partially vaccinated. If your worker informs you that they are subject to one of the exceptions but you are unsure, feel free to seek legal advice from us.

Tasmania

The Tasmanian Government has announced a mandatory COVID-19 vaccination requirement for all health care workers, both public and private, by 31 October 2021. From 31 October 2021, all persons working (employed or engaged to work, including work experience) in a healthcare setting must be fully vaccinated, or have scheduled their first dose, unless the worker submits an exemption form:  vaccination exemption form.

The direction makes clear that:

  • private dental practices are covered
  • dental practitioners cannot provide dental services unless fully vaccinated, or have arranged to have the first dose by 31 October 2021
  • staff/contractors/persons doing work experience must also comply, otherwise they cannot enter the premises
  • some exemptions apply, which generally will be based on medical evidence and must be provided
  • all persons need to provide evidence of compliance to their employer.

If your Practice is located in Tasmania, you need to comply with this Direction and take steps to ensure compliance. This will likely involve:

  • advising your team (and contractors, including cleaners) of the Direction, and the requirement to comply with it, subject to exemptions
  • setting a timeframe (before 31 October 2021) for evidence of vaccinations/appointments/exemptions to be provided
  • nominating the individual responsible in your Practice as the contact person for your team/person who collates the evidence
  • appropriately managing persons who do not comply, without an exemption.  This may result in dismissal and in that case, regard should be had for the application of unfair dismissal laws/general protections/other workplace laws.

NSW

The Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 does not cover private dental Practices generally. However, private dental practitioners who are the Oral Health Fee For Service Scheme (OHFFSS) providers are considered health care workers under the Order and therefore need to provide NSW Health with evidence of COVID-19 vaccination status – at least one dose of a COVID-19 vaccine by 30 September 2021 and two doses by 30 November 2021.

NT

The NT Government recently published COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace which take effect on 13 October 2021. A worker who, during the course of work, is likely to come into contact with a vulnerable person; a worker who is at risk of infection with COVID-19 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection and a worker whose workplace poses a high risk of infection with COVID-19 are all covered by the Directions.

Workers who directly face customers or patients in health care and ancillary health care services are clearly included as a group who, during the course of work, are likely to come into contact with a vulnerable person, so we can safely assume the Directions extend to private dental and orthodontic Practices. GP clinics are listed.

For the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the workplace. On and from 25 December 2021, a worker who has not received 2 doses of an approved COVID-19 vaccine must not attend the workplace.

All other states and territories

Other states and territories have yet to make the COVID-19 vaccine mandatory for private dental and orthodontic Practices. However, if any of your staff members are crossing state or territory borders to work (for instance entering Queensland from New South Wales), please seek separate legal advice from us as they might need to comply with mandatory vaccination directions too. In the absence of any laws mandating vaccinations, it is up to the individual Practice whether you wish to make vaccinations mandatory. Due to the risks posed by the Delta variant and the high-risk of transmission in health care settings, it is likely that it would be considered a ‘lawful and reasonable direction’.

Since mandatory vaccination is likely to be lawful and reasonable, this means that if your Practice chooses to implement a mandatory vaccination policy and a staff member refuses to be vaccinated, adverse action (up to and including termination of employment) could be taken against them. This decision should not be taken lightly and we suggest you seek legal advice before proceeding so you can follow the proper process as prescribed.

We also advise Practices to proceed with caution such as by mandating COVID-19 vaccination for staff with direct patient contact (i.e. an increased risk of being infected) and taking into account other relevant factors including the extent of community transmission of COVID-19 in the location.

Moreover, if Practices decide to make vaccinations mandatory, they need to ensure that they attempt to make ‘reasonable accommodations’ for those who refuse the vaccine either for medical or religious reasons. Reasonable accommodations might include changing the staff member’s role to minimise direct patient contact or other protective measures such as the use of protective barriers. If these accommodations are not reasonably practicable for the Practice, they can choose not to take those measures. Practices should nonetheless be aware of anti-discrimination laws and federal or state disability laws when communicating with staff members.

As mentioned in our previous circular, under WHS laws, employers have an obligation to protect the health and safety of employees in the workplace.

In considering whether to mandate vaccinations for your staff in the absence of a public health direction, we suggest you:

  • undertake a risk assessment for your business
  • consider the available control measuresand how they will help to manage the risks of COVID-19
  • consult with workers about COVID-19 and relevant control measures, including COVID-19 vaccines
  • determine what control measures are reasonably practicable for you to implement in your workplace.

Finally, a Practice which implements a mandatory vaccination policy must follow their workplace consultation obligations. These obligations require that you:

  • notify any employees who might be affected by the proposed changes, and their representatives
  • discuss the proposed changes with the affected employees and any representatives as soon as possible after a decision is made
  • provide them with written information about the changes, how they might affect employees, and any measures you will put in place to prevent or reduce any adverse effect
  • give prompt consideration to any matters raised by the employees and their representatives.

If you are a ClinLegal member, you can now access a mandatory COVID-19 vaccination policy on the member portal.

If you have any questions about implementing a mandatory vaccination policy in your Practice, or anything else discussed in this article, feel free to reach out to us at [email protected].

This Circular and video are produced for guidance purposes only and are not a substitute for legal advice. Legal advice should be sought for individual circumstances. For tailored advice for your Practice, please contact us.