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With a nationwide spike in COVID-19 cases and the concern regarding the highly transmittable Delta variant, many employers are pushing to implement vaccine policies for some workers.
Mandating of COVID-19 Vaccines
Mandating COVID-19 vaccines in some workplaces means employees refusing to be vaccinated may be out of a job. This raises concerns in regard to whether employers need to introduce vaccination leave, an employer’s potential liability for an employee’s adverse reaction to the vaccine and potential discrimination complaints or unfair dismissal claim an employee may attempt to bring.
Many employers have already workplacehowever many are hesitating due to the worrying legalities. If an employer mandates the COVID-19 vaccine in their workplace and requires employees to be vaccinated, will the employee be paid for their time off? Is the employer responsible for granting special leave to the employee for the purpose of getting vaccinated or is this taken out of the employee’s sick leave? If the employee falls ill as a result of the vaccination, will this be taken out of the employee’s accumulated sick leave? Can an employer be liable if an employee suffers an adverse reaction to the vaccine?
COVID-19 Vaccine Claim Scheme
Employer Not Liable for An Employees’ Adverse Reaction to COVID-19 Jab
As it stands, the Australian Government has established a COVID-19 Vaccine Claim Scheme to provide further assurance and confidence to patients and health professionals in the COVID-19 vaccine rollout. In the event someone suffers a significant adverse reaction, causing injury and economic loss because of vaccination, the Scheme will help guide potential claimants through a no fault claims process scheme. The Scheme will provide Australians with efficient access to compensation for COVID-19 claims related to the administration of a Therapeutic Goods Administration (TGA) approved COVID-19 vaccine delivered through a Commonwealth Government approved program, irrespective of where that vaccination occurs. This means employers are supported and protected by this Scheme, giving them the greenlight to mandate the COVID-19 Jab.
Workers Compensation Claims For Adverse Reaction to COVID-19 Jab
Separate to the COVID-19 Vaccine Claim Scheme, in some circumstances, an adverse reaction to the COVID-19 vaccine may be covered under workers’ compensation. To be covered, the employer’s insurer will need to be satisfied that:
- the vaccine injury arose out of, or in the course of the worker’s employment; and
- the worker’s employment was a substantial contributing factor to the vaccine injury or was the main contributing factor for a disease, injury; or
- in the case of heart attack or stroke injury, the nature of the employment was a relevant factor in increasing the risk of the injury (see below).
While each claim needs to be assessed on the relevant facts and evidence, several issues may increase the likelihood that a vaccine injury is covered under workers’ compensation, including whether an employer took steps to arrange for its employees to receive a COVID-19 vaccine, encouraged or induced its employees to receive the vaccination to obtain benefits for its business, permitted or directed employees to have a COVID-19 vaccination during ordinary working hours; or provided instructions to employees relating to the administration of the vaccine.
Nevertheless, the key factor determining liability is the relationship between the workplace and how an injury arose out of or in the course of employment. Therefore, the role of the employer is important when considering the exposures presented by COVID-19 vaccinations and how this can be determined to be in the course of employment. The link between a vaccine injury and the worker’s employment is easier to establish where a worker is influenced by their employer’s requirement to receive the vaccine or is subject to a Government Public Health Order. In these circumstances, there is a greater likelihood of the vaccine injury being covered under workers’ compensation. When lodging a claim, employers and workers will need to provide information on the link between their employment and the serious adverse reaction to the vaccine.
Push For Paid Vaccination Leave
As employers push for employees to be vaccinated, some are offering special “paid vaccination leave” meaning workers won’t have to use their sick or annual leave to get the jab. As it stands, this special “paid vaccination leave” is at the discretion of the employer but the Australian Council of Trade Unions is pushing the government to introduce two days of paid vaccination leave into the Fair Work Act 2009 (Cth). This will include casual workers and account for the time it takes to get a jab and recover from routine side effects.
This would take the pressure of employers as small businesses with only one or two employees, would have much less capacity to offer time off for vaccinations than large employers. If you are being directed to be vaccinated by your employer, speak to your employer about getting vaccinated outside work hours or whether they can accommodate any special leave requests.
Can I fire or refuse to hire unvaccinated people?
The General Protections provisions are set out in Part 3-1 of the Fair Work Act 2009 (Cth) (the FW ACT). Section 351(1) of the Fair Work Act 2009 (Cth) provide employees with protection against discriminatory treatment and adverse action for a range of protected attributes. Thus, an employer must not take adverse action, such as terminated an employee, because of the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or Carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. However, vaccination status is not a protected attribute.
Under anti-discrimination laws, discrimination in an employer-employee relationship is defined when an employer deliberately treats an employee, or a group of employees, less favorably than other employees because of their protected attribute. Under Federal and State anti-discrimination laws, the list of protected attributes varies in regards to the wording of each ground but no laws include vaccination status as a ground on which an employee can be discriminated against.
Thus, if an employee is terminated or an employer refuses to hire an employee because they are not vaccinated, this is not grounds for a discrimination complaint on its own. The employee’s reason for not being vaccinated would need to fall under an already established ground of discrimination. For instance, if an employee has a medical condition and can provide medical evidence that they cannot have the COVID-19 jab, then discrimination on the ground of “disability” or “impairment” (ground depends on federal or state-specific legislation) may be made out.
If an employee has no reasonable reason to refuse the COVID-19 jab, this may be grounds for termination and it will not constitute discrimination. Be careful of the situation where the employer says you cannot turn up unless you are vaccinated, you then stay away to see what happens next but then the employer terminates you for abandonment of employment
How can AWNA help you?
Unfair Dismissal
A Whole New Approach will support you through any available avenues with respect to unfair dismissal claims and the COVID-19 vaccination. It’s important we work with you to act on putting forward any applications to the Fair Work Commission within 21 days of dismissal taking effect. Read more about Unfair Dismissal.
General Protections
General protection applications through the Fair Work Commission enable you to put forward any claims of adverse actions including bullying and discrimination. Lodging a claim is available to all employees (permanent or not), or an independent contractor. Read more about General Protections.
Supporting employees
For a consultation to discuss what options are available, get in touch with A Whole New Approach at 1300 766 700. We are not lawyers. Our team of expert Workplace Advisors offer a guided approach to help you make the most informed decision around the next steps. This may include pursuing a General Protections Application in the Fair Work Commission or a Discrimination Complaint through the relevant Human Rights Commission. Been constructively dismissed? non genuine redundancy? need help with a workplace investigation? give us a call, advice is free, honest and to the point. We hear you we are only here for employees.
By Gary Pinchen.
