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  5. Mandatory Vaccination – Legal Update

What is the basis of the recent government directions?

Section 167 of the Public Health Act 2016 (WA) empowers the Minister to declare a public health state of emergency in the state. The Minister must consider the advice of the Chief Health Officer before issuing a declaration and be satisfied that a public health emergency is present and that extraordinary measures are necessary to protect the community. The government has extended the declaration on a rolling basis by 14 days at a time (the maximum it can be extended for at a time). This declaration enables the government to exercise “emergency powers” which include the ability to make directions such as those recently announced.

Key Dates

  • Hotel quarantine workers were required to be fully vaccinated by 10 May 2021.
  • “Exposed” port workers are required to be fully vaccinated by 12 November 2021 (and are required to have already had their first dose).
  • Residential aged care workers are required to be fully vaccinated by 17 November 2021 (and are required to have already had their first dose).
  • Health care and health support workers in public and private hospitals and public healthcare facilities are required to be fully vaccinated by 1 November 2021 (and are required to have already had their first dose).
  • For individuals in occupations deemed by the State Government as having a high transmission risk, vulnerable or necessary for the safety of the community, workers engaged in work in remote Aboriginal communities, community care services, corrections, border control, and police:
    • First dose by 1 December 2021
    • Fully vaccinated by 1 January 2022
  • For individuals in occupations deemed by the State Government as critical to business and function of the community, such as frontline workers in supermarkets, restaurants, petrol stations, accommodation and transport:
    • First dose by 31 December 2021
    • Fully vaccinated by 1 January 2022
  • Workers in schools will be required to be fully vaccinated by Day 1 of Term 1.
  • In the event of a lockdown or similar restrictions, workers in a wider range of services and businesses will be required to be fully vaccinated.

Frequently Asked Questions

Depending on your occupation individuals may be eligible for an exemption. Potential grounds of exemption include a medical exemption, a temporary exemption or an exemption in the performance of a specific duty.

The Federal Government is currently developing a claims scheme to compensate individuals who suffer a moderate to significant impact as a result of an adverse reaction to the vaccine. 

The proposed scheme is only available to individuals who have been administered a vaccine approved by the Therapeutic Goods Administration (TGA).

Evidence requirements apply for making a claim under the scheme, which will cover the costs of injuries $5,000 and above.

Businesses have an obligation to provide a safe workplace for employees. If an employee is not vaccinated by the relevant date, a business may choose to refuse an employee attendance of their workplace unless they have an approved exemption. Depending on the nature of work, the business can consider working from home arrangement or employing the person in an alternative role or work location. It should be noted that employees will not be paid if they are not able to work unless they are lawfully accessing annual, personal or long service leave. Employees cannot be forced to resign. In the event an employee can no longer perform their role, this may form the basis for termination or other disciplinary action. 

If you are fired, stood down, forced to take leave or put on unpaid leave as a result of not being vaccinated the usual employment laws apply. You may have a legal claim depending on the circumstances of your employment, the unique requirements of your workplace and the nature of your dismissal.

Vaccination status in and of itself is not protected from discrimination. At this stage, businesses can choose to prohibit persons attending at their site if they’re not vaccinated (or for any other reason, provided it is not discriminatory). However, business should be careful about exercising this option as it might be indirect discrimination if the employee’s reason for not being vaccinated is protected. Businesses may wish to consider reasonable alternatives to vaccination such as masks and social distancing to protect their staff.

Yes, businesses can introduce mandatory workplace vaccination policies even if they are not covered by government directions. Businesses will need to justify that any such policy is lawful and reasonable, such as for the protection of the health and safety of their staff. Businesses should also take into account whether other options are available and should be implemented such as masks, social distancing or working from home.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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