COVID-19 Boosters, Mandatory or Not?

KEY TAKE-OUTS

• Employers can mandate the COVID-19 booster vaccination
• An employer direction to get the COVID-19 booster vaccination must be lawful and reasonable
• Employers must undertake genuine consultation with their staff before issuing a COVID-19 vaccination direction in accordance with their obligations under the WHS Act.
• Employers should be wary that the legal definition of ‘fully vaccinated’ does not include the booster vaccination
• Workplace COVID-19 policies and employment contracts should be drafted carefully by a legal professional to ensure enforceability

Covid 19 has created a whirl wind in the workplace. It has brought to a head a number of issues that previously were not front of mind for any business. As we navigate the future with the Covid 19 well entrenched in it we need to turn our mind to the ongoing discussions around Vaccination and Boosters.

Employers should be wary that the legal definition of a ‘fully vaccinated’ person does not include a person who has had their booster vaccination. According to Public Health (COVID-19 General) Order (No 2) 2021, a ‘fully vaccinated’ person is somebody who has only had their first and second COVID-19 vaccinations.

NSW Government Advice

The Government position:

• The booster is recommended but it is not mandatory (exceptions may apply)
• The booster may be taken by eligible persons, including persons:
  • over the age of 18 years, and
  • who have had their first and second vaccinations
• The booster should be received four months following the date of the second vaccination
• The booster is expected to strengthen the protection afforded by the first two vaccinations
• The booster will be free for everyone

There are some fields of employment whereby a booster is mandatory such as Aged Care. Public Health (COVID-19 Care Services) Order (No 3) 2021.

Can I mandate the booster?

Employers must apply the lawful and reasonable test to all directions made to employees to get a COVID-19 vaccination. This should be assessed on a case-by-case basis, considering a range of factors.

The lawful and reasonable test will apply to any employer who wishes to mandate the booster for their employees or workplace.

Employers who have an existing COVID-19 vaccination policy in effect should check the terms of the policy to determine if it has sufficient scope to apply to the booster. If it does not, the policy should be amended accordingly.

For those without a COVID-19 policy already in place, a policy can be implemented directing staff to receive the first two COVID-19 vaccinations and the booster. This is because a direction to get the booster without the two clinically requisite vaccinations will likely be legally unenforceable.

Consultation

In the matter of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and BHP. the court found that BHP’s pre-direction communications with workers ultimately fell short of its obligation to consult in accordance with the Work Health and Safety Act 2011 (NSW) (WHS Act), and therefore the direction was not a reasonable one as the test requires.

It is important to take the necessary steps before mandating the booster or vaccination one and two.

Policy in Business

COVID-19 policies should not at this time be drafted pre-emptively of any further vaccinations that may be rolled out in the future, beyond the present booster. Policies in respect of future vaccinations should be determined when more information is available about such vaccinations, and when the relevant health implications can be better understood.

If you need your policy reviewed or are unsure what you need, please contact us at COUTTS to assist.

ABOUT KARENA NICHOLLS:

Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach that has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.