COVID in the workplace – a challenge for employers

As the ability to receive COVID-19 vaccinations in Australia increases, it is timely to review the strategies employers should implement to minimise or eliminate the risk of the virus entering or spreading within the workplace.

One of the key questions surrounding the issue is under what circumstances could an employer introduce testing for their employees.

Firstly, it is important to recognise that employers have a fundamental legal obligation to provide and maintain a safe workplace.

Current work health and safety (WHS) legislative provisions dictate that a person conducting a business or undertaking (PCBU) must ensure, so far as practicable, the health and safety of workers:

• engaged, or caused to be engaged by the person, or
• whose activities in carrying out work are influenced or directed by the person

while the workers are at work in the business or undertaking.

A PCBU must also ensure, so far as is reasonably practicable, that the health and safety of others is not put at risk from work carried out as part of the conduct of the business or undertaking.

Indeed, there are already a wide range of occupations where employers routinely require employees to have mandatory inoculations as part of their employment, including aged care workers (influenza), plumbers (hepatitis) and road workers removing dead animals (Q fever).

In 2015, a Queensland company pleaded guilty to breaching s32 of the Work Health and Safety Act 2011,¹ and was fined $20,000 for failing to meet its work health and safety duties in relation to managing risks associated with an infectious disease.

A worker of the company, which operated an export abattoir and meat processing plant, became ill with symptoms of Q fever. A vaccine is available and recommended for high-risk workers (such as him), but he was not tested or vaccinated.

The company had in place control measures to ensure workers were wearing correctly fitted masks to reduce the likelihood of exposure; however, inadequate supervision meant that the worker was not wearing his mask at all times when working in the workplace.

An added complexity of viruses is the liability risk they pose to employers in the area of workplace injuries. In Queensland, Western Australia, the Northern Territory and Victoria, diseases are considered to be injuries in workers’ compensation legislation and thus workers will be covered if they contract COVID-19 at work – whether that be from a colleague or some other person.

Admittedly, sometimes it can be hard to show that a disease was contracted at work rather than somewhere else. This would be particularly hard with COVID in periods of high community transmission. Western Australia dealt with this for healthcare workers by introducing a rebuttable presumption that COVID-19 contracted by healthcare workers was work-related.

This exposure to liability may lead employers to be more inclined to mandate or strongly encourage their employees to receive the vaccine. The question then becomes whether an employee can face disciplinary action if they refuse to do so, up to and including termination.

Two recent Fair Work Commission decisions have upheld the lawful termination of employees who refused to undertake compulsory influenza vaccination, as required by their employer.

In Ms B v Goodstart Early Learning Centre,² the employer operates one of Australia’s largest childcare and early learning providers. In April 2020, the employer introduced an immunisation policy that all staff must receive the influenza vaccination unless they had a medical condition that made it unsafe for them to do so. The policy had been introduced after extensive consultation with workers and relevant unions. The employee claimed that she had a sensitive immune system and had an allergic reaction to an injection 11 years earlier, and she refused to be inoculated.

Ultimately, the employer determined that the medical certificate she provided was insufficient to support her objection. She was terminated effective from 13 August 2020 for her failure to be vaccinated and for her failure to meet the inherent requirements of her job.

Although the latter claim was not supported, Deputy President Lake noted:

“I am satisfied that it is a lawful and reasonable direction for Goodstart to implement the policy mandating flu vaccination … I consider the direction to be vaccinated is lawful and reasonable and, therefore, a valid reason for termination based on the Applicant’s refusal to comply with that direction.”

He further noted that the employee “failed to produce an adequate medical exemption to the policy”.

In JK v Sapphire Coastal Community Aged Care,³ the employer operates a not-for-profit community aged care group with several facilities catering for high-needs aged care. In 2020, the New South Wales Government responded to the COVID-19 outbreak by introducing stricter influenza inoculation requirements for employees in aged care facilities.

The employer consequently advised all employees in writing that they would need to have the vaccination or not be able to attend for work. A receptionist employee, who had previously undertaken voluntary influenza vaccinations in 2015 and 2016, refused to be inoculated. She claimed that she had developed a severe skin inflammation lasting 10 months after her second injection.

In April 2021, the employer wrote to her advising that she would be stood down from her position as a result of refusing to be vaccinated. She did provide some documentation from her treating doctors; however, none of them directly linked her condition to the vaccination. Following a series of meetings and correspondence, she was dismissed.

At the hearing, the employer provided expert evidence that it was improbable that her condition was linked to the vaccination, as she believed.

Commissioner McKenna, in her decision, acknowledged the right of the employee to make a personal choice to refuse the injection. However, in refusing the injection, she noted:

“The applicant was unable to perform the inherent requirements of her job if she was not properly permitted to enter or remain at Imlay House absent having an up-to-date flu shot. That is, if the applicant could not enter Imlay House, she could not perform the (principally) receptionist role and other clerical requirements of her position.”

It is important to note that in both cases the employer was operating in relatively ‘high-risk’ industries with vulnerable clients, being childcare and aged care. Further, in both cases, the employer was subject to strict government regulation and guidance. Finally, neither employee was able to produce significant medical documentation to support their claims that inoculations were likely to cause them harm.

If an employer wishes to mandate COVID-19 vaccination, they will need to justify that decision by showing the vaccination is reasonably necessary for the employee to perform the inherent duties of the position safely. That decision could be relatively straightforward if it applies to ‘frontline troops’ (including in the industries referred to above) but becomes more debatable if the employer sought to apply the decision unilaterally to every employee in the workplace, as well as visitors, contractors and so on.

Some of the key relevant factors for employers to consider, include:

• Is the Australian Health Protection Principal Committee recommending COVID-19 vaccinations for all workers in your industry?
• Will your workers be exposed to a higher risk of infection as part of their work?
• Do your workers work with people who would be vulnerable to severe disease if they contract COVID-19?
• What is the likelihood that COVID-19 could be spread in your workplace?
• Do your workers interact with large numbers of other people in the course of their work?
• What other control measures are available in your work? Have they been assessed, and do they work?
• Have you consulted with employees regarding vaccination compared with other control measures?
• Would a requirement to vaccinate be lawful and reasonable in the circumstances?

The COVID-19 virus and its vaccinations represent new challenges to our employment law landscape. They highlight the extent to which the reasonableness of an employer’s direction is dependent on various surrounding circumstances.

In relation to a direction to receive the vaccination, those circumstances go beyond the employee’s workplace and the employer’s business, and may extend to the presence of the virus in the community at the particular time, the efficacy and availability of vaccines, and even public trust in those vaccines. These variables are not typically factored into the employment relationship, and will require nuanced consideration by employers, employees and workplace lawyers.

What is clear is that each workplace – and perhaps employee – will require its own subjective assessment of the risks posed by COVID-19, and then separately, the risks of vaccination. Employers should also be prepared to revisit those assessments as more information becomes known about the virus and the vaccinations, including their efficacy at reducing transmission and side effects.

At the very least, it is recommended that employers should encourage as many employees as possible to undergo inoculation voluntarily, as many have done in the past with regard to influenza vaccinations. Ultimately the passage of time will impact our collective and individual formation of these issues and this is the same for courts, tribunals, employers and employees.

This article appears courtesy of the Queensland Law Society Industrial Law Committee. Giri Sivaraman is a Principal at Maurice Blackburn, Brisbane, and Dean Cameron is Practice Director at Workplace Advisory, Brisbane. Both authors are members of the committee.

References
¹ Details of successful prosecution against E184384 | WorkSafe.qld.gov.au.
² Ms B v Goodstart Early Learning [2021] FWC 2156 (20 April 2021).
³ Ms K v Sapphire Coastal Community Aged Care Ltd [2021] FWC 1818 (29 April 2021).