Key Takeaways

News reports, almost daily, provide reports on protests against compulsory vaccination for COVID-19 under the belief that vaccination is completely voluntary and people may choose not to be vaccinated and go about their days unhindered. But there are many situations when that is not so.

Government Health Orders

A government health order may require people to be vaccinated in specific high risk situations, or to take other safety actions to prevent the spread of Covid in the community (e.g. social distancing, the size of gatherings). The health order may allow for exemptions from vaccination if the person to be vaccinated has a genuine reason for not doing so. Usually that would be because a person’s pre-existing illness would be aggravated by the vaccine. Penalties apply for non-compliance.

Work Health and Safety Laws

All states and territories have a Work Health and Safety Act (WHS Act). Most employees and employers are aware of the need for workplace safety and its importance to the welfare of everyone in a workplace. The primary duty owed by an employer to an employee is that the employer must ensure so far as is reasonably practicable the health, safety and welfare of workers (including contractors and volunteers) and others in the workplace (customers, clients, visitors).

The duties of an employer may include monitoring the health of workers and the conditions of the workplace for the purpose of preventing illness or injury. In the context of protecting workers from COVID-19 infection, the employer must take steps to minimise that risk as far as is reasonably practicable by, e.g.:

• Allowing or directing employees to work from home.
• Physical distancing in the workplace.
• Requiring workers to practice good hygiene.
• Directing workers to stay home when sick.
• Frequent cleaning of the workplace.
• Providing washroom facilities, including adequate supply of soap, water and paper towels.
• Use of hand sanitiser, where it is not possible for workers to wash their hands; and staff rooms that are regularly cleaned and allow for physical distancing.

Breaches of WHS laws may result in criminal prosecution.

Workers Compensation

The Workers Compensation Act 1987 (the Act) was amended to include a special provision, s 19B regarding work-related injury claims arising from COVID-19 infections sustained in certain prescribed employment, which includes:

a) the retail industry;
b)   the healthcare sector;
c)   disability and aged care facilities;
d)   educational institutions including pre-schools and schools;
e)   police and emergency services;
f)   refuges, half-way houses and homeless shelters;
g)   passenger and transport services;
h)   libraries;
i)   courts and tribunals;
j)   correctional centres and detention centres;
k)   restaurants, clubs and hotels:
l)   the construction industry;
m)   places of public entertainment or instruction (including cinemas, museums, galleries and casinos);
n)   the cleaning industry; and
o)   any other type of employment prescribed by the regulations.

For workers in such occupations who have COVID-19, it is presumed that the COVID-19 disease was contracted in the course of employment and employment was the main contributing factor to contracting the disease (or a substantial contributing factor to contacting the disease depending on the date of injury.)

The Act states that ‘a worker is taken to have contracted COVID-19 if the worker was classified by a medical practitioner as having COVID-19, having satisfied the epidemiological or clinical criteria (or both) prescribed by the regulations.’

The date of injury is whichever of the following occurs first:

a)   a worker is diagnosed by a medical practitioner as having COVID-19 following a prescribed test result;
b)   the worker is classified by a medical practitioner as having COVID;
c)   the worker dies as a result of COVID.

Importantly, subsection (5 of) s19B provides:

‘For the purposes of this Act, it is presumed (unless the contrary is established) that a worker the subject of a presumption under subsection 1 is incapable of work as a result of COVID-19 for the period starting on the date of injury and ending (unless sooner ended by the death of the worker):

a) on the date established in accordance with the regulations, or if no regulations are made, on a date that is seven days after the date on which a medical practitioner certifies that the worker no longer has the disease.’

These provisions also apply to casual workers but only if the casual work was performed within the 21 days preceding the date of injury.

Section 19B is intended to reduce the likelihood of any dispute regarding the worker’s claim for compensation; and in turn, speed up the process so that the worker is not disadvantaged.

Implications

If a worker refuses a reasonable and lawful direction by the employer to comply with COVID-19 restrictions, or refuses vaccination where that is required to prevent the spread of the disease in the workplace; it is important that the employer discusses this with the worker to establish why there has been a refusal.

This may also assist in finding a compromise, such as working from home; transfer to another workplace; or different duties. The worker could also access sick leave, if entitled. The worker could access accrued annual leave if sick leave is not available, subject to the employer’s agreement.

Sending a worker home without pay is not allowed (unless the worker requests unpaid leave).

Unfortunately, if a dispute does arise, there are many issues to consider before taking action against an employee: including the Fair Work Act, Antidiscrimination laws, Privacy laws, and more. Such disputes become very complex, very quickly, unless the employer and worker are able to compromise.