Opinion | RVA Answers Some Tough Questions

While there has been a mixed response from the sector on mandatory or voluntary vaccinations, the truth is that the only viable way to get the economy back on track, and for the population to have as much freedom as possible, is to have most of the country’s eligible population vaccinated.

AgedPlus caught up with John Collyns, Executive Director RVA for some guidance for employers in the aged care sector.

Can employees working in retirement villages and/or aged care facilities be required to have a COVID-19 vaccination?

The starting point is that employers cannot require employees to be vaccinated unless they are covered by the ambit of the COVID-19 Public Health Response (Vaccinations) Amendment Order 2021, or are occupying a role that is deemed 'high risk'. The Vaccinations Order does not currently cover employees of retirement villages or aged care facilities, however these employees may still be working in roles that are considered 'high risk' given their proximity to vulnerable persons.

To determine whether an employee is occupying a 'high risk' position, the retirement village/aged care facility must conduct a risk assessment of each role type with respect to COVID-19. If it is deemed that a particular role is 'high risk', vaccinations could be considered necessary to meet the obligations under the Health and Safety at Work Act 2015 (HSWA) and employers could therefore likely be justified in requiring compulsory vaccination for employees occupying those roles. However, employers should be reminded that they are required to consult with their employees before any requirement to receive the COVID-19 vaccination is introduced. If any employee objects to vaccination on grounds that could give rise to grounds for discrimination, such as having a disability or based on religious grounds, employers must in good faith extensively explore alternatives for those employees, before considering termination of employment.

Can employees working in retirement villages and/or aged care facilities be required to provide evidence of COVID-19 vaccination?

In the event that, after conducting a health and safety risk assessment, an employer decides that a role must be conducted by a vaccinated employee, then that employer is able to ask an existing employee about their vaccination status. If the employee refuses to disclose their status, the employer is able to assume that the employee is unvaccinated for the purposes of managing health and safety risks. The employer will however need to inform their employees during the consultation process that this assumption will be made if they do not provide their vaccination status.

Employees who are not occupying 'high risk' roles may otherwise voluntarily provide their vaccination status to their employer. We caution in both instances that there are Privacy Act 2020 considerations as a person's vaccination status is personal information and therefore subject to protections afforded by the information privacy principles.

What is the process for carrying out a risk assessment to decide which health and safety measures to adopt with respect to the risk to health and safety posed by COVID-19?

Employers carrying out risk assessments on the impact, or the likely impact, of COVID-19 on their workplaces need to consider two key factors:

  • The likelihood of a worker being exposed to COVID-19 while performing the relevant role; and
  • The potential consequences of COVID-19 exposure on others (e.g. community or workplace transmission).

A risk assessment will need to take into account the relevant factors of each workplace on a case by case basis and it is encouraged that employers communicate with their employees and discuss the risks that they might see as a result of COVID-19. WorkSafe have issued guidance that suggests this will be an ongoing process. A 'Plan, Do, Check and Act' approach has been suggested –

  • Plan – Identify and assess risks;
  • Do – Eliminate or minimise the risks;
  • Check – Monitor the control measures; and
  • Act – Review for continuous improvement.

Employers will need to continue to review measures and assess the risk of COVID-19 on their workplace, and update accordingly.

How should new employees of retirement villages and/or aged care facilities be treated in response to COVID-19?

Employers are able to offer terms of engagement to suit the organisation's needs and can bargain and agree new terms of employment within each individual employment agreement. The requirement to be vaccinated can therefore be included as part of the recruitment process for a new employee, the prospective employee's letter of offer, or a term of a proposed new individual employment agreement, so long as there are justifiable reasons for the role requiring this.