FAQs to help organisations navigate their way through COVID-19 mandating vaccinations

Workplace safety laws require you to ensure the safety of your workers, yourself and any others in the workplace as far as practicable.  This includes the risk of exposure to COVID-19 in the workplace.

You may not be able to eliminate the risk of workers being exposed to COVID-19 while at work completely.  However, you must do all that you reasonably can to minimise this risk and vaccination may be considered as one way to do so in the context of a range of COVID-19 control measures, such as physical distancing, hygiene, training and education, compliance with legislation, and response to a COVID-19 incident.

Current legislation advises a worker can only cease or refuse to carry out work if they have a reasonable concern that to carry out the work would expose them a serious risk to their health or safety from an immediate or imminent exposure to a hazard.  Generally speaking, a worker will not be able to rely on workplace health and safety legislation to cease work simply because another worker at the workplace is not vaccinated.

We suggest consulting your workers to understand their concerns and assure them that you are continuing to implement control measures, which are known to reduce the spread of the virus in the workplace, such as physical distancing, good hygiene and increased cleaning.

We also suggest consulting with relevant unions as applicable to understand their concerns.

Each State and Territory has confirmed that COVID-19 claims which arise out of or in the course of employment will be deemed compensable, however each claim will be assessed on its own merits.  Some of the considerations include:

1. Has the worker travelled overseas in the last three months.
2. Does the worker have evidence to confirm they came into contact with a positive COVID-19 case.
3. Has anyone else in the workplace tested positive.
4. Has the worker came into contact with anyone outside of the workplace who has tested positive.

Generally front line workers who have the most exposure will have an easier pathway.  Compensation will also extend to employees where there are adverse reactions due to mandatory vaccination.

In NSW, they have taken the additional measure to remove the cost of any COVID-19 claim from your premium calculations which means COVID-19 claims in NSW will not impact your premium costs.  It will be interesting to see if other States apply a similar rule.

For any claims relating to vaccination that are not deemed to have arisen outside of or in the course of employment, the Federal Government has implemented a national scheme to help those who have suffered a moderate to significant impact following an adverse reaction. Some highlights of this scheme are:

1. It will cover the costs of injuries greater than $5k due to the administration of a TGA approved vaccination.
2. The claimant is required to have at lease one night hospitalisation.
3. The scheme will cover loss of wages and medical expenses.

Legislation and Directions in many States and Territories is still being considered around asking customers and visitors for proof of COVID-19 vaccination. However, this may change in the near future and we suggest preparing the implementation of such a system for condition of entry.

For example, in Victoria, recent changes have included the introduction of COVID-19 Vaccinated Activities Directions which provide information on which industries can reopen to the public with mandatory vaccination requirements.  This commenced for outdoor personal training and theatres on 09/10 and will most likely be expanded to include the bulk of retail.

More information here https://www.dhhs.vic.gov.au/victorias-restriction-levels-covid-19

1. Make getting vaccinated easy.  Share information about accessing vaccinations and where reasonable consider opportunities for providing flexibility in working hours for employees to be vaccinated.
2. Focus on the immediate benefits or incentives.  Communicate clear information about the immediate work-related and personal benefits of being vaccinated and consider any ways that the workplace can incentivise and reward positive vaccination status, such as bonus annual leave.
3. Provide clarity around the activities.  Vaccinations may be necessary in line with state-based directives, be clear about the workplace activities that will require team members to be vaccinated and offer advanced notice of any limitations or restrictions that will impact team members.
4. Help team members understand that they will be protected against any loss associated with getting vaccinated.  Share information about workers’ compensation and other entitlements to increase trust and confidence.
5. Share positive stories over statistics without under-estimating genuine risks.  Aim to build confidence with positive and personalised workplace stories about vaccination and re-connecting, rather than shocking statistics.  However, be clear and realistic about the risks associated with COVID-19 at your workplace and the importance of vaccinations as a safety measure.

The Vaccine Claims scheme was announced by the Federal Government on 28^th August 2021.  The scheme will be administered by Services Australia and from 06^th September 2021; Australians who suffer injury and loss of income due to their COVID-19 vaccination will be able to register their intent to claim from the Scheme webpage.  The scheme will cover the costs of injuries above $5,000 due to a proven adverse reaction to a COVID-19 vaccination or its administration.  Claims between $5,000-$20,000 will be assessed by Services Australia and anything above $20,000 will be assessed by independent experts and claims paid based on their recommendations.

The scheme will be backdated to February 2021 when the vaccination program commenced nationally.

1. Be curious, not furious; where a worker is hesitant to be vaccinated, return to the office or participate in key workplace activities, first and foremost aim to understand their concerns, provide positive choices and alleviate any barriers or misinformation.
2. Be open to a case by case approach rather than generalised statements or directives; even where there is a state government mandate regarding vaccinations or mask-wearing there will still be genuine exemptions to the program which team members need to be comfortable to voice.
3. Where possible, take an incentivised rather than punitive approach to vaccinations, return to the office and other topics where there may be hesitancy or divided opinion; use state-based directives such as workplace attendance to support where relevant.
4. Link your approach to vaccinations and return to the office, to your overarching workplace values and mission; it’s not about individuals but coming together as a team.
5. Provide a refresh of information around respectful behaviours, your code of conduct and bullying and harassment as an aspect of your return to the office processes.
6. Be proactive in managing any interpersonal conflict around vaccinations, mask-wearing or any other COVID-19 related concerns; a lack of intervention and action may give rise to complaints of bullying, harassment or discrimination.

Yes, many organisations such as Google, Qantas, SPC and Gallagher USA have introduced a mandatory vaccination policy for employees.

Some workers may have to get vaccinated under public health orders made by states and territories; for example, for people working in high-risk workplaces such as the following:

• Hotel quarantine centre workers.
• Residential aged care facility workers.
• Health care workers.
• Aviation workers.

If public health orders apply to your business or workers, you must follow them.

Yes, FWO have provided the following broad four tiers:

Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).

Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).

Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).

Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

A workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time.

The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus.

An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.

An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.

More information can be found here COVID-19 vaccinations: workplace rights & obligations – Fair Work Ombudsman

The following link provides general information on COVID-19 vaccinations and federal discrimination law and is intended as a guide only.

It gives guidance on the most frequently asked questions  COVID-19 vaccinations and federal discrimination law | Australian Human Rights Commission

The Acting Chief Health Officer of Victoria has issued Public Health Directions for Victorian employers to explain the COVID-19 Mandatory Vaccination requirements relating to workers who are authorised to leave home for work. In particular:

In summary, this now requires:

• Employers to notify workers of mandatory vaccination requirements.
• Employers to collect, record and hold information about vaccination status:
  • Fully vaccinated – where the person has received two doses of a COVID-19 vaccine.
  • Partially vaccinated – where the person has received one dose of COVID-19 vaccine and is not an excepted person.
  • Unvaccinated – where the person has not received a dose of a COVID-19 vaccine and is not an excepted person.
  • An excepted person – where the person holds certification from a medical practitioner that the person is unable to receive a dose, or a further dose, of a COVID-19 vaccine due to a medical contraindication or acute medical illness.
• Employers must ensure that unvaccinated workers do not work outside ordinary place of residence if unvaccinated (unless the worker falls into exceptional circumstance category).  Where there is no knowledge of the worker vaccination status, they will be treated as unvaccinated.
• Records may be requested by Authorised Officers of the Government.
• The document also provides clarification on the classes of workers and roles that these directions apply to.

Penalties for failure to meet requirements can reach circa $21K for individuals and $110K for businesses.

More information here https://www.dhhs.vic.gov.au/victorias-restriction-levels-covid-19

If you employ workers under the WA State Industrial Relations System, there is information for sole traders, unincorporated partnerships, unincorporated trusts and some incorporated or not for profit organisations here Employment impacted by the COVID-19 coronavirus | Department of Mines, Industry Regulation and Safety (commerce.wa.gov.au)

Two different industrial relations systems operate in WA, the state system and the national fair work system.  The two systems have different employment rights and obligations.  Find more information here  Guide to who is in the WA state system | Department of Mines, Industry Regulation and Safety (commerce.wa.gov.au) 

Mandatory COVID-19 vaccination policy for WA workforces information can be found here Mandatory COVID-19 vaccination policy for WA workforces (www.wa.gov.au)

The Northern Territory Government has issued the following Directions for Mandatory Vaccination of Workers to attend the Workplace. It is mandatory for workers in certain settings across the Northern Territory to get the COVID-19 vaccination and show evidence of this to their employer to continue working in the same role. This includes that they:

• Are fully vaccinated with two doses of the COVID-19 vaccine.
• Have received a first dose by 12 November 2021 and two doses of the COVID-19 vaccine by 24 December 2021.
• Are not vaccinated.
• Have a proven contraindication to all available vaccines.

The below list provides some examples of the types of workers required to get the COVID-19 vaccination. If your occupation falls under one of the categories, you are required to get the COVID-19 vaccine in line with the CHO Direction, even if it is not directly specified.

CATEGORY 1

A worker who is likely to come into contact with people who are at risk of severe illness from COVID, work with Aboriginal people, or who works with people who cannot be vaccinated due to age or a contraindication to all vaccines.

People who work with children

Examples include but are not limited to:

• Teachers.
• Child care workers.
• Tutors.
• Coaches.
• Dancing teachers.
• Swimming instructors.

People who work in customer-facing roles

Examples include but are not limited to:

• Retail.
• Finance.
• Hospitality.
• Veterinary services.
• Gyms.
• Beauty.

People who work with vulnerable people

Examples include but are not limited to:

• Disability care workers.
• Personal carers.
• Legal service providers.

People who work in Aboriginal communities and community services sector

Examples include but are not limited to:

• Community stores.
• Regional councils.
• Aboriginal art centres.
• Remote community Police.
• Cleaning contractors.
• Tradespeople.
• Domestic and family violence services.
• Alcohol and other drugs.
• Youth services.
• Faith based leaders in remote communities.

CATEGORY 2

A worker who is at an increased risk of contracting COVID-19 or who work in a high risk setting where there is a known risk of COVID-19 transmission or outbreak.

People who are at risk of contracting COVID-19 because they may come into contact with a person or thing that poses a risk of infection during the course of their work.

Examples include but are not limited to:

• Health care workers in hospitals and emergency departments.
• Police and emergency service workers.
• Workers in quarantine facilities & border control workers.
• GP clinics, respiratory clinics, pharmacies.

People who work in high risk settings where COVID-19 transmission or an outbreak may occur

Examples include but are not limited to:

• Correction and detention facilities.
• Homeless shelters.
• Mine sites.
• Food processing distribution.
• Cold storage facilities including abattoirs.
• Cruise ships.

CATEGORY 3

A worker who performs work in essential infrastructure, food or essential goods security or supply, or logistics in the Territory.

People who work in essential infrastructure and logistics

Examples include but are not limited to:

• Essential infrastructure including electricity, gas, water, sewerage, telecommunications and remote infrastructure.
• A person who is critical to the NT’s COVID-19 response, who is not included in Category 1.
• COVID-19 Emergency Operations Centre.

VOLUNTEERS

Volunteers are defined as a worker, as per Section 7 (1) of the Work Health and Safety (National Uniform Legislation) Act 2011

For those who the CHO Direction applies, in order for volunteers to continue working in the same role, they must have their:

• First COVID-19 vaccine dose by 12 November 2021.
• Second COVID-19 vaccine dose by 24 December 2021.

If you’re not sure if the Direction applies to you, ask yourself these three questions:

1. In my volunteer work, do I come into contact with vulnerable people?
2. Is my volunteer work at a higher risk of infection?
3. Does my volunteer work include infrastructure or logistics that are critical to the Territory?

If your answer is maybe, or I don’t know, you need to get the COVID-19 vaccine. If your volunteer work includes interacting with members of the public, then you need to get the COVID-19 vaccine.

RESIDENTIAL AGED CARE WORKERS 

Residential aged care workers are required to provide evidence to their employer that they:

• Are fully vaccinated with two doses of the COVID-19 vaccine.
• Have received a first dose by 17 September 2021 and have a booking to receive a second dose by 31 October 2021.

QUARANTINE WORKERS 

Quarantine workers are required to provide evidence to their employer that they:

• Are fully vaccinated, having had two doses of the COVID-19 vaccine.
• Have received a first dose of the vaccine by 15 October 2021 and have a booking to receive the second dose by 26 November 2021.
• Comply with the required COVID-19 testing regime.

FREIGHT TRANSPORT WORKERS 

A freight worker must not enter the Territory unless the worker has been vaccinated as follows:

• from 1 November 2021 – the worker has received the first dose; and
• from 13 December 2021 – the worker has received the second dose.

On entry freight workers must submit to testing and produce:

• evidence of the freight worker’s vaccination (for example a completed appointment slip or medical certificate for the first dose or a digital certificate for full vaccination shown on a mobile phone);
• an approved freight risk mitigation management plan; and
• a border entry form.

Freight workers must submit to testing every 7 days while in the Territory.

More information here can be found here:

https://coronavirus.nt.gov.au/stay-safe/freedoms-and-restrictions/questions-and-answers/workers

https://coronavirus.nt.gov.au/stay-safe/freedoms-and-restrictions/questions-and-answers/employers

1. We can review your workforce in terms of Fair Work Ombudsman tier based model.
2. We can draft strategy for relevant workforce segments.
3. We can support you to undertake required consultation process.
4. We can implement and review the above quarterly or as required due to changes in legislation and legal precedent.
5. We can develop a holistic health and wellbeing program for your workplace.
6. We can complete a specific risk assessment targeting the organisation’s COVID-19 response and workforce requirements, including Officer Due Diligence responsibilities, building plant and workplace design (space provisions, fresh air exchange and temperature concerns), monitoring and engaging with workers who are working remotely to ensure that any physical or mental hazards related to their work are identified, assessed, controlled and part of education programs. More specifically, we can provide you the following services in alignment with International Standard Organisation [ISO] /Publicly Accepted Standard [PAS] 45005:2020 Occupational health and safety management — General guidelines for safe working during the COVID-19 pandemic:

Officer Due Diligence Sessions

We can provide a curated session (1-1.5hrs)  for your Executive Team to address:

STREAM 1: Mandatory Vaccinations

• Legislative obligations related to COVID vaccinations.
• Emerging Government and Regulator guidance on requirements.
• Best practice approaches and considerations when implementing a mandatory vaccination policy.
• Emerging case law precedents and Regulator prosecution intent for COVID breaches.

STREAM 2: Meeting Due-Diligence Obligations with COVID-19

• Legislative obligations as an Officer to provide due-diligence.
• Managing COVID-19 risk in the workplace.
• Emerging case law precedents and Regulator prosecution intent for COVID breaches.
• Maintaining an Officer Due Diligence Diary.

COVID Vaccination Risk Assessment Workshop

We can facilitate an organisational risk assessment workshop (3hrs) to identify:

• Legislation applicable to mandatory vaccination consideration (i.e. WHS Act, OHS Act, Fair Work Act, Privacy Act, Anti-Discrimination legislation).
• Stakeholders requiring engagement and establishing an identified engagement schedule.
• Key milestone dates for the proposed policy/program to take effect.
• Key areas / job roles with risk exposure requiring prioritised intervention.
• Identify risk control protocols for exempt workers and those choosing not to vaccinate when in an occupational setting.
• Whether vaccination, considered as an engineering control is suitable or requiring a range of additional controls to address identified hazards.
• Consideration of an infection control risk assessment methodology, rather than normal risk assessment practice to address this risk.

COVID Risk Advisory Service

If you have the capacity for internal facilitation of the enclosed (Officer Due Diligence session or Vaccination Risk Assessment Workshop), we can provide external assurance of your assumptions and risk assessments completed to date. We can:

• Provide technical review of your documentation including COVIDSafe plans.
• Provide external audit and assurance that your nominated risk controls are being implemented effectively to establish Officer Due-diligence.
• Challenge proposed protocols based on our knowledge of industry practice and approach with other clients and using our professional networks.

Consider the risk of not having a COVID-19 vaccination policy and a worker transmitting the virus to a fellow worker who subsequently becomes very ill from COVID-19.

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