COVID-19 VACCINATION IN THE FREIGHT SECTOR
Many of you will be following closely the latest legal developments relating to COVID-19 vaccines in the workplace. Qantas for example, recently announced it will introduce mandatory vaccination for its employees and a number of Australian employers have indicated that they will mandate vaccines for their workers.
This raises issues about whether such a mandate is legal and enforceable. There are a number of important considerations in connection with the legality and enforceability of mandatory vaccination relevant to freight sector employers.
Employees in the freight sector have been recognised by the Australian Health Protection Principal Committee (AHPPC) in its latest statement on 9 July 2021, as posing a high risk of spreading infection should they contract COVID-19. AHPPC notes that testing and vaccination of persons that are highly mobile in the Australian community is an important mechanism to protect not only individuals from acquiring COVID-19, but also reducing the likelihood of onward transmission.
Because of the risk of seeding of outbreaks across the country, the AHPPC strongly encourages freight and transport industries to promote and facilitate vaccination. However, mandating vaccination requires consideration by employers who are left to balance their responsibility to minimise the risks associated with COVID-19 with their obligations to employees.
A mandate to undergo COVID-19 vaccination will only be enforceable if the direction to the employee is ‘reasonable and lawful.’ Whether a direction to undergo a COVID-19 vaccine is reasonable and lawful will depend on whether the employer could reasonably accommodate the risk without the vaccination, and will involve consideration of factors such as:
the nature of each workplace (including whether it is possible to distance and whether there is contact with the public);
the extent of COVID-19 transmission in the location where the direction is being given;
the effectiveness and success rates of the vaccine in reducing transmission of COVID-19; and
individual circumstances of employees including medical conditions preventing vaccination.
Many employees in frontline logistics or maritime roles, such as truck drivers, are frequently required to have contact with consignees and may not be able to socially distance to limit the risk of contracting and spreading COVID-19. State regulations, in NSW, for example, are prescriptive about the level of PPE equipment which is required in certain roles. Exposure to large numbers of people especially members of the public in situations where social distancing is not possible would make mandatory vaccination reasonable unless the worker had a valid reason not to be vaccinated. Whether it is reasonable to require all employees to have a vaccination will turn on the precise nature of the working arrangements for those employees.
Another option for employers to consider is incentivising vaccines. If that is being considered, it is important to consider the requirements of the Therapeutic Goods (Restricted Representations - COVID-19 Vaccines) Permission (No. 3) 2021, which imposes the following conditions:
the offer can only be made to people who have been fully vaccinated, which for the current approved COVID-19 vaccines, means the two vaccinations;
an offer must contain a statement to the effect that the vaccination must be undertaken on the advice of a health practitioner;
rewards must not include tobacco or medicines (other than listed medicines);
offer must only refer to COVID-19 vaccines generically;
offer must be made to all eligible people who have been vaccinated;
offer of alcohol must not encourage excessive or rapid consumption of alcohol, have a strong or evident appeal to minors and must be served consistent with the Responsible Service Alcohol arrangements.
Any program which offers incentives to those who have been vaccinated should expressly state that the employer is not providing health advice and that employees need to obtain their own health advice about the vaccine and should also make clear that the program may be open to those who are unable to get the vaccine to ensure that there is no suggestion of discrimination on the basis of health conditions or religious grounds. It is also important to consider the implications of privacy legislation when requiring an employee to provide sensitive information including information about their vaccination status.
Please feel free to be in contact if we can help with any further information or in drafting a policy appropriate for your workplace.
Contact: Danella Wilmshurst Alexis Cahalan Janine Liang