Medical practices must ensure the health and safety of their workers and other persons who enter the practice. They can do this by undertaking a risk assessment in consultation with their staff and then implementing the control measures that are necessary to manage the identified risks. Many practices have implemented mandatory COVID-19 vaccination for employees as a control measure.
Public health direction
Practices must comply with public health directions which require healthcare workers staff to be vaccinated against COVID-19.
Unfortunately, the public health directions are different in each state and territory. Some require employees in all private medical practices to be vaccinated. Others only require employees in public and private hospitals (including those working in any practice within a private hospital) to be vaccinated.
The public health directions generally prevent unvaccinated employees from attending a practice to work. They do not prevent unvaccinated employees working from home or taking paid or unpaid leave, and act as a short term measure.
We strongly recommend against dismissing an employee on the basis of a public health direction given the temporary nature of the direction. Rather, the practice should consider whether the staff member can work from home or take paid or unpaid leave or whether it should issue a reasonable and lawful direction.
Reasonable and lawful direction
Practices have been considering the risks associated with COVID-19 and implementing measures to manage those risks since the beginning of the pandemic. This risk assessment is an ongoing process and requires your practice to:
- identify the risks that arise as a result of COVID-19 including the risks associated with unvaccinated staff working at the practice
- identify the control measures that could be put in place to manage the risk. The control measures could include:
- mandating COVID-19 vaccination for employees who work in the practice
- considering alternatives for employees who cannot or will not be vaccinated against COVID-19 including working from home, wearing full PPE in the practice or taking paid or unpaid leave
- consult with your staff about the risks and the proposed control measures
- implement the proposed control measures.
If your risk assessment identifies that mandatory vaccination against COVID-19 is an appropriate control measure, you should document this requirement together with other control measures that may be appropriate if staff cannot or will not be vaccinated.
We recommend that all health and safety requirements relating to COVID-19 be included in your practice’s COVIDSafe plan rather than in separate policies.
You should notify employees about the requirement for mandatory COVID-19 vaccination by providing a copy of your risk assessment and COVIDSafe plan and giving them a reasonable and lawful direction to be vaccinated.
Employee will not be vaccinated
If an employee will not be vaccinated, you should consider whether the employee’s employment can continue in another way (for example, whether the employee can work from home or can take paid or unpaid leave). You do not have to allow employees to work from home or take unpaid leave if your business requirements do not permit it.
You should consult with the employee about alternative ways of working and consider any views they may have.
If an employee cannot work at the practice and the practice cannot accommodate working from home or unpaid leave, you may be able to dismiss the employee. We recommend that you seek legal advice before doing so.
Contact Avant’s medico-legal advisers on 1800 128 268 for assistance.