Ask DSC: Is it mandatory for support workers to be vaccinated for COVID-19?

Ask DSC: Is it still mandatory for support workers providing in home one on one supports in Victoria (NDIS) to be vaccinated for COVID-19? There is so much contradicting information […]. I feel it needs to be a Yes, or No? Then we received some information via WorkSafe Victoria that all evidence of proof of COVID-19 vaccination is to be destroyed?

We often get asked some version of this question. Sometimes it feels like it could get a bit sticky, like the beginning of an argument you might have with your aunt over Christmas lunch. But requirements have changed, so its important providers are aware of their new obligations and the decisions they are going to have to make.

The short answer is - no, this requirement has been lifted. Other states and territories have or are also lifting vaccination mandates (the websites for each jurisdiction’s health department are listed below).

It is now up to each provider to decide what their vaccine requirements will be. And doesn’t that open a can of worms?

It is also important to note that many participants want vaccinated workers. Many people on the NDIS are vulnerable to severe illness if they get infected or have family members who are.

Work, health, and safety laws require providers to do what is reasonably practicable to minimise the risk of transmission of COVID-19, as well as other infectious diseases.

As work health and safety legislation is risk based, start with a risk assessment.

Assess what the potential impact COVID-19 would have if workers, participants, and others acquired it, as well as the likelihood that this may occur.

Then:

Consider if vaccinations and the other controls you already have in place are effective.
Identify if there are other potential measures.
Consult with workers.
Consult with participants, where measures may impact them.
Determine what control measures are reasonably practicable.
And then implement the measures.

Although vaccinations are still strongly recommended, they are not the only measure to consider. However not all measures are as effective as others, so a good start is to refer to the hierarchy of controls.

For the safety geeks out there, I would place vaccinations under engineering - let me know what you think.

Control type: Elimination

Examples:

Requesting people who are sick to stay home.
Closing off a site to visitors.
Completing appointments via online.
Thorough hand hygiene.
Thorough environmental cleaning.

Control Type: Substitution

Examples:

Using single use equipment instead of reusable forms.
Substitute face to face with online appointments.

Control type: Isolation

Examples:

Management and storage of waste.
Isolating a sick resident away from others in the house.
Physical distancing.

Control type: Engineering

Examples

Vaccination
Ventilation
Physical barriers used to separate people such as screens.
Redesigning work areas such as positioning of workstations, directing airflow, reduced touch points etc.
Engineered bins to reduce touching i.e., sharps bins, bins with foot pedals and self-closing lids etc.

Control type: Administrative

Examples:

Document plans, measures, and relevant instructions you need workers to follow.
Put up signage, such as how to use PPE or wash hands etc.
Train workers to implement the agreed controls.
Develop an immunisation program.

Control type: Personal Protective

Examples:

Suitable equipment, with adequate supply and which is easily accessible.

Should providers make vaccinations mandatory?

If you decide that one control measure is vaccination, then the next question is – are workers going to be encouraged to be vaccinated or will this be a mandatory requirement?

The reason governments implemented mandates in the first place is because many participants are particularly vulnerable. And there is still significant risk.

However, any mandatory direction you give to workers needs to be lawful and reasonable.

To be lawful, the direction needs to comply with any awards, contracts, and agreements you have in place. Plus, relevant laws, for example anti-discrimination and privacy.

Measures need to be in place to avoid discriminating against candidates and workers, including having a process to consider each worker’s circumstance. For example, if they have a legitimate reason for not obtaining a vaccination. What process will you take if a worker states that they have a medical condition which prevents them from being vaccinated? What evidence will you ask them to provide? How will reasonable adjustments be made so they can continue to work?

If a worker’s reason for not wanting the vaccine is not due to a protected attribute under anti-discrimination laws - for example, if its personal preference - then this would not be discrimination.

You will also need to consider what private health information you retain. The golden rule is to keep as little information as possible. For example, a record that simply captures a yes or no answer to vaccination, rather than a copy of their vaccination history and information from their treating doctor regarding why a person is medically not able to be vaccinated.

To be reasonable is defined as being based on good judgement or sense.

In this case of COVID vaccines, this could include that the decision was only made after considering:

Work, health and safety risks and legal obligations.
The tasks the person would be required to complete, and if they would have unavoidable close interactions with participants.
The availability and effectiveness of other control measures.
Each worker’s circumstance.

Refer to Fairwork Australia for further guidance www.fairwork.gov.au/find-help-for/covid-19-and-workplace-laws/covid-19-vaccinations.

What about relevant case law?

Relevant legal cases highlight the need for a consultative and considered approach before introducing vaccination mandates.

A case was brought by a schoolteacher (Dawking) who claimed she sustained a psychological injury due to the vaccination mandate. This issue was not the vaccination mandate but rather how it was communicated and implemented.

In summary Dawking argued that no consideration was given to:

Her continuing to work remotely or redeployment.
The fact that the pandemic would not last indefinitely, and that rather than termination she could have been suspended.
Any special leave provisions.
The fact that the only exemption to the vaccination mandate was on medical grounds.

The court agreed and her claim for compensation was accepted. Following this case, the education department changed their practices to ensure that each objection to obtaining a vaccination was reviewed on a case-by-case basis.

How about a voluntary immunisation program?

Voluntary immunisation programs take the argument out of if someone wants to be vaccinated or not, as well as reduces the administrative burden of following up and record keeping. However, it is likely that less people will keep their vaccinations up to date.

If you decide that you will encourage rather than mandate vaccinations, you can still develop an immunisation program.

You could include:

promoting the benefits of vaccinations,
providing guidance to workers on where they can get a vaccination,
giving workers time off work to obtain a vaccine, or even having a nurse come to the workplace to administer them.

An immunisation program may be included as part of a wellness program.

However, if a participant has requested that they are only supported by vaccinated workers, you will need to work out some way to manage this.

It is also advisable to consider what other immunisations support workers should obtain.

The Department of Health and Aged Care recommends that support workers receive vaccines against:

Influenza
Hepatitis A
Hepatitis B

To date over 70% of Australian adults have had three doses of the COVID 19 vaccination. In contrast NCIRS report that this year (as of mid - August) only 18.5% of people aged 5 -50 years old have had the influenza vaccine. I have not seen data on Hepatitis A and B rates, but it is arguably even lower.

But the catch is that these are not free like the COVID-19 vaccination. Organisations often opt to pay or reimburse workers who obtain these extra vaccinations, as they feel this will increase uptake and that the benefits outweigh the costs. The benefits may include reduced sick leave, likelihood of transmission to participants and potentially improved worker morale.

No matter which way you go, all providers still have an obligation under both safety laws and the NDIS Standards to have a program and training in place to prevent and contain infectious diseases.