The management of COVID-19 in the workplace is a health and safety issue employers have been grappling with since the start of the pandemic. The recent developments with WorkSafe Victoria charging the Victorian Department of Health with 58 breaches of the Occupational Health and Safety Act (Vic) regarding Victoria's hotel quarantine system is reflective of the regulatory action we are likely to continue to see nationally. However, the commentary around an employer's right to mandate vaccinations has been encapsulated in Employment Law and HR commentary – but as these prosecutions demonstrate, should we be looking for guidance from the safety laws instead?

We have already seen blitzes across a variety of industries by police seeking to enforce public health directions, as well as low level enforcement by state-based safety regulators – after all, the general duty is to ensure the health and safety of workers and others.

One of the most challenging issues for employers (and there are many) in the current environment is: how do we manage COVID-19 in the workplace as we move towards returning to a semblance of normality, while recognising the risk of contracting the disease will remain and needs to be managed?

When it comes to the management of risks in the workplace, employers need to assess the hazard and where the hazard cannot be eliminated, minimise the risk so far as is reasonably practicable. Acknowledging COVID-19 cannot be eliminated, then employers need to ask this question based on what we know now: "how can we minimise the risk so far as is reasonably practicable?"

There are a number of controls which health experts have identified as minimising the risk of either contracting COVID-19, or the risk of transmitting it to another person, including a co-worker. While social distancing, mask wearing and contact tracing have been utilised in the past, the current clear commentary relates to a vast proportion of the population (or workforce) being vaccinated. Indeed, some large front-line employers have already mandated compulsory vaccination to their employees, some of which are now being challenged through the Courts.

Can COVID-19 be work related?

Throughout the various Australian workers' compensation jurisdictions, for an injury or disease to be work related, there must be a real and operable connection between a person's employment and the contraction of the disease (or sustaining of the injury).

In relation to the contraction of COVID-19, the New South Wales Personal Injury Commission has recently determined that a Sydney worker who died due to contracting COVID-19 while in New York on a work trip, sustained an injury which arose in the course of his employment. The Commission accepted that while not all the activities carried out in the United States may be considered as occurring in the course of employment, the period of travel to the United States was clearly within the course of the employment with the respondent, as that activity was induced and encouraged by the respondent. This conclusion was supported by the fact that the Claimant was likely infected with COVID-19 during the period of time between boarding his flight at Sydney Airport and his arrival at his hotel in New York.

With the ability to genome sequence the virus, the source of infection is now readily identifiable, and if it was contracted at work, or through work, it is likely to be compensable.

Under OHS law, how should the risk of contracting COVID-19 be controlled?

As an identifiable risk in the workplace, exposure to COVID-19 must be managed through the risk-based methodology enshrined in the various pieces of safety law throughout the country. Therefore, as stated above, the risk must be eliminated if possible, and if not, the risk reduced as far as reasonably practicable. In circumstances where there is currently no known way to eliminate the virus, the question for employers becomes: " utilising the hierarchy of controls, which available control measure (or combination of them) is appropriate for their workplace?".

Prior to vaccinations becoming available, the primary control measures utilised by employers were:

  1. Hand sanitisation
  2. Mask wearing
  3. Social distancing/isolation
  4. Cleaning regimes
  5. Contract tracing (although this should be seen as not an individual control measure, but rather a control measure for the community at large)

The challenge with each of the above control measures is that they are all lower order administrative and PPE controls. The question therefore is whether a vaccination is a higher order control than the above.

Certainly, vaccinations would be seen as something higher than an administrative control, however, it is something different to a traditional engineering control. For instance – if a machine is properly guarded (an engineering control), a worker should not sustain an injury. If a worker has had a COVID-19 vaccination, on the current medical evidence, they may still catch the disease, but its effects won't be as severe and they are likely to infect less people.

Ultimately, we consider a Court will find that vaccination is a higher control than those available to employers previously.

Can the requirement to be vaccinated be a lawful direction?

If through the risk management matrix, an employer decides upon a control measure to minimise a risk or workplace injury or disease, it is a lawful direction for the employer to require a worker to follow that direction.

As can be seen from the recent well publicised case of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, which related to influenza vaccinations required under a public health order, the courts will support an employer in such circumstances. The comment from the Bench was insightful: "we do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement".

Summary

Employers should look to a risk-based approach to controlling the risk of COVID-19 contraction in their workplace, or through their workplace activities. As each workplace is different, the outcomes of this risk management process will be different for each employer. However, where this risk of COVID-19 is high in a particular workplace, or the demographic of the workplace is one where the effects will be greater, a higher-level control measure is appropriate. Mandatory vaccinations could well be considered one of those higher order controls.

This article covers legal and technical issues in a general way and is for information purposes only. It should not be regarded as legal advice. We encourage you to seek further specific advice prior to taking any action on the issues contemplated by this article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.