Are we getting closer to mandating Covid 19 vaccination in workplaces?

This recent announcement has led to speculation that there may be a softening of the position on mandatory vaccination generally and that other workplaces may be able to issue a similar direction.  In our view this announcement cannot be interpreted as a move towards or a softening of views about mandatory workplace Covid 19 vaccination. We set out our reasons for this view below.

The residential aged care industry has historically been treated differently when it comes to vaccinations. A number of years ago flu vaccinations were mandated in these settings. At that time, the vulnerable nature of the residents was the reason for the mandating of flu vaccines. This is the same rationale for mandating of Covid 19 vaccinations. Residents in aged care facilities have been identified as a group who are particularly vulnerable to serious illness and at a heightened risk of death from Covid 19, therefore because of this, they are being treated differently to other industries which do not have this same risk profile.

In other settings, such as hospitals, states such as Queensland have mandated that any employee working with Covid 19 patients must be vaccinated. They have done this through health directives. What differentiates this group from the residential aged care setting however is that the hospitals are much larger and employees who do not wish to be vaccinated are able to work in other areas of the hospital. Therefore, this is not a requirement that all employees must be vaccinated, it is merely a restriction on who can work with a particular patient group.  Employees who are not vaccinated can continue to work in the hospital, just in different areas of the hospital. In residential aged care all employees either interact directly with the potentially vulnerable residents or interact with those employees who do work directly with the potentially vulnerable residents.  The risk profile of such settings is not the same as other workplaces.

It is our view that the move to mandate Covid 19 vaccinations for residential aged care is not an indication that we are a step closer to employers generally being able to mandate Covid 19 vaccinations for their employees. The decision about residential aged care facilities is not surprising given that there is already in place a mandatory obligation to be vaccinated for the flu for these employees. This decision therefore is best considered to be but an extension of the already existing difference in the way vaccination is treated for employees in this industry and nothing more.  What is more surprising about the Government decision to mandate Covid 19 vaccination in aged care facilities is that it was not made earlier, given the rationale for the mandating of flu vaccinations in this industry. There may well be other employment settings which may be able to mandate Covid 19 vaccinations, but where this may occur, in our view, will be determined on the particular risk profile of the workplace and if it is justified from a Workplace Health and Safety perspective. 

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Author: Cheryl-Anne Laird

Published: 09/07/2021

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