In early 2020, a major emergency was declared in each State of Australia in response to the emerging threat of COVID-19. Since then, a suite of declarations have been issued through the use of powers that are enlivened during a major emergency. One of the most polarising declarations was vaccination mandates for workers employed in essential industries to help minimise the spread and impact of COVID-19.
In South Australia, like other States, these state-imposed vaccination mandates have applied to aged care workers, disability care workers, health care workers, police officers, education and transport workers.
The effect of these vaccine mandates was that workers had to have a first and second dose of the COVID-19 vaccine within prescribed timeframes to continue to work in these essential industries
Current state-imposed vaccination mandates in the health sector
In South Australia, vaccination mandates that are currently in force that apply to the health sector are found in the following directions:
- the Emergency Management (In-home and Community Aged Care and Disability Support Workers Vaccination No 4) (COVID-19) Direction 2022; and
- the Emergency Management (Healthcare Setting Workers Vaccination No 7) (COVID-19) Direction 2022 (Mandate Directions).
The Mandate Directions provide that a person must not engage in work or perform duties in a healthcare setting or the duties of an in-home and community aged care worker or a disability support worker unless:
- the person has received at least one dose of a TGA approved or recognised COVID-19 vaccine; and
- has received, or has evidence of a booking to receive, a second dose of a TGA approved or recognised COVID-19 vaccine within the interval after the first dose recommended by the ATAGI for that COVID-19 vaccine; and
- within the prescribed time, the person receives, or has evidence of a booking to receive, a third dose (booster) of a TGA approved COVID-19 vaccine.
South Australia’s current approach is consistent with that recommended by the Australian Health Protection Principal Committee (AHPPC), which issued a statement on 31 March 2022[1] that specifically noted the importance of increasing the coverage for the ‘booster’ dose in adults in a timely way.
In the statement, the AHPPC also discussed winter preparedness. In light of the increased case numbers being experienced nationally, it recommends maximising vaccination uptake and coverage as an important step in protecting against severe illness and infection.
The future of state-imposed vaccination mandates in South Australia
More recently, despite the AHPPC’s emphasis on the critical importance of vaccination in response to COVID-19, there has been a winding back of state-imposed vaccination mandates.
We have already seen the removal of the vaccine mandate for police officers in favour of other safety measures that will allow the unvaccinated members of the police force to return to work. Unvaccinated police officers are required to wear a face mask, perform a rapid antigen test before their shift, and cannot operate in high-risk settings such as residential aged care facilities.
On 30 March 2022, the State Coordinator, Grantley Stevens, managing the major emergency, announced that state-imposed vaccination mandates for education and transport workers would also be removed. Unvaccinated workers in these industries are also required to wear face masks and undertake rapid antigen tests as directed by their managers.
The only major industries where state-imposed vaccination mandates in South Australia remain in place are health care, disability care and residential aged care. However, these mandates, which rely upon the continuation of the state of emergency, appear likely to come to an end in the coming months. The State Coordinator, Grantley Stevens and South Australian Premier, Peter Malinauskas, have both made clear they want the state of emergency to end as soon as possible. Employers in these industries should begin planning now, so they have adequate control measures in place when these mandates end to minimise COVID-19 exposure risks in the workplace.
Health sector management based vaccination mandates (mandatory vaccination policy)
As South Australia and other States transition away from state-imposed vaccination mandates in favour of management directions, health care, disability care and residential aged care providers should consider whether their workplace strategy needs to be updated to include preparations for a mandatory vaccination policy. The recommendations of the AHPPC directed toward the importance of vaccination provide a clear foundation for the need to introduce such a policy for safety reasons.
To assist those providers who choose to move towards the introduction of their own vaccination policy, we identify the following three key steps:
- Develop a vaccination policy
A health sector operator could adopt the vaccination requirements (including the requirement for a ‘booster’) from the current Mandate Direction for their proposed policy.
The benefit for an operator of this approach is that it maintains consistency with current state-based vaccination requirements that apply to workers and operators in the sector.
The proposed vaccination policy should include a process for managing refusal scenarios, such as for medical/health reasons or for ideological/political reasons, and any potential employment pathways, options, or outcomes.
The vaccination policy will also need to cover how a health sector operator will manage record-keeping and privacy.
- Consultation
A health sector operator must consult with workers when seeking to introduce mandatory vaccination policies to comply with workplace and safety laws - as was made clear by the full bench of the Fair Work Commission in its recent decision of CFMEU v Mt Arthur Coal [2021] FWCFB 6059[2].
As part of its consultation with workers, an operator’s communication plan should include information about the vaccine, why a mandate may be reasonable at the workplace, and how the operator plans to implement the vaccination policy.
Health sector operators also need to give staff ample opportunity to ask questions and discuss any concerns.
- Record Keeping
A health sector operator will need to consider a review of their privacy policy, including the seeking and maintaining of the confidentiality of information about the vaccination status of workers.
If you require assistance in preparing a mandatory vaccination policy in anticipation of the likely removal of the state-based mandates before winter, please get in touch with one of our employment law experts.
