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COVID-19 Workplace Vaccinations – Employer considerations and the Indemnity scheme

Workplace risk management has always been an important feature of keeping Australia out of lockdowns and functioning.
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Gallagher acknowledges that COVID-19 workplace risk management has always been an important feature of keeping Australia out of lockdowns and functioning to potential. COVID-19 booster programs in 2022 could become part of the Australian workplace landscape, similar to annual flu shot.  On the 28th August, the Federal  Government responded to the confusion around the liability for workplace COVID-19 vaccination programs by announcing an indemnity scheme to protect employers who may face costly claims when they facilitate vaccinations in the workplace.

From 6 September 2021, Australians who suffer injury or loss of income due to the administration of a COVID-19 Vaccine or due to an adverse event that is considered to be caused by a COVID-19 vaccine, will be able to register their intent to claim from the Federal Scheme. In parallel, the Federal Government is also developing a portal to formally submit claims and documentation, and those who register their intent to claim will be contacted once this portal has been established and they are able to submit the formal claim.  Evidence of an adverse event is not required when registering intent to claim.  The Scheme will cover the costs of injuries above $5,000 due to a proven adverse reaction to a COVID-19 vaccine.  The Therapeutic Goods Administration (TGA) will provide guidance on recognised adverse reactions as part of their established surveillance program, and claims will be assessed by independent experts, with compensation paid based on their recommendations. The Scheme will be backdated to 22 February 2021 and will be administered by Services Australia.

In some circumstances an adverse reaction to the COVID-19 vaccine may be covered under workers compensation. Each claim will be assessed on its own merits. To be covered, the 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.

While each claim needs to be assessed on its own facts and evidence, several factors may increase the likelihood that a vaccine injury is found to be covered under workers compensation, including whether an employer:

  • took steps to arrange for its employees to be administered a COVID-19 vaccine
  • encouraged or induced its employees to get vaccinated in order 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.

In NSW for example, the link between the vaccine injury and the worker’s employment is easier to establish where a worker is influenced by their employer’s requirement to get vaccinated or is subject to a NSW Government Public Health Order.

In these circumstances there is an increased likelihood of the vaccine injury being covered under workers compensation. When lodging a claim, employers and workers will be required to provide information on the link between work and the adverse reaction to the vaccine. If a vaccine injury is a “heart attack injury” or “stroke injury” under section 9B of the 1987 Act, the worker is required to also establish that the nature of their employment significantly contributed to the injury. In practice, this may mean that the worker will have to satisfy additional requirements. For example, the worker may need to show that they only opted for a particular vaccine brand due to their employment.  Under the federal scheme, for claims between $5,000 and $20,000, claimants need to have been hospitalised for at least one night, will need to nominate they are seeking less than $20,000 and provide applicable evidence of:

  • the nature of the injury and medical documentation of its likely relationship to a COVID-19 vaccination,
  • hospitalisation, due to a vaccine-related injury,
  • medical costs, and
  • lost wages.

Obviously there is no need to establish a link to employment under the federal scheme because it is not workplace exclusive.

There are five things that employers can do today to commence preparing for or to support public health vaccination efforts.

  1. Communicate, encourage and support workers with access to reliable and accurate information about vaccinations and where to get vaccinated
  2. Provide flexible workplace arrangements to support workers in getting the vaccine (eg. moving or staggering shift times)
  3. Consult with workers on how to best approach vaccinations and ensure that all workers are kept safe (including those who remain or choose to remain unvaccinated)
  4. Maintain accurate and up-to-date records in line with privacy requirements
  5. Continue to review COVIDSafe Plans and Risk Assessments to ensure that other controls (apart from vaccinations) are considered and monitored for effective implementation

Gallagher Workplace Risk are available to help employers understand how to navigate their responsibilities and opportunities in managing a COVID-19 vaccination program and how to best encourage workers to take part or inform themselves of the importance or participating in the national vaccination efforts. The Gallagher Workplace Risk Team are comprised of specialists in Risk Advisory, Workers Compensation, Injury Management and Workplace Training, and with our associates, we can facilitate support for employers to better understand and manage their risk.

Contact Gallagher Workplace Risk on 1300 789 467 or enquirieswpr@ajg.com.au to discuss how we can support your business.