Now that Australia is vaccinating its people at a reasonable rate from a very slow start, the issue of mandatory vaccinations for workers has reappeared. Several months ago the issue was more hypothetical but evidence has appeared from England, the United States and Israel about vaccination rates and the resumption of business and work. Australian businesses need to reach a clear position on vaccinations and the return of employees to workplaces, and this will require an assessment of the ethics applied by employers.
The occupational health and safety (OHS) position is remarkably clear but is not really being heard or promoted.
The primary OHS duty sits with employers who must provide safe and healthy work environments. After COVID-19 that could be costly and may require some redesign of workplaces, some adjustments to building ventilation and air-conditioning, recalculation of workers per metre of floor space and a rewrite of specifications for workplace amenities and their cleanliness.
However, the more relevant OHS legislative obligation is the secondary or supplementary duty owed by workers and employers. This is part of the duty of workers according to the Model Work Health and Safety legislation.
“While at work, a worker must:Section 28
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons;……..”
In terms of infectious disease, be it COVID-19 or influenza, a worker should not infect others at work. There are workplace structures in place to assist with this such as sick leave with or without a medical certificate, that allows a worker to stay home or isolate themselves from their workplaces.
The worker also is obliged to look after their own health. This is most likely to require a suitable level of personnel hygiene which relates, in a COVID19 pandemic, to washing or disinfecting hands supported by keeping a suitable social distance.
Most workers comply with OHS laws most of the time, so these OHS duties will work. But what about those who may refuse to take care of themselves and others at work? Every business has them. “What do I have to that for?” “I did wash my hands!” These sorts of responses indicate a reluctance to satisfy their legislated OHS duties. OHS professionals need to engage with these people and understand their perspectives. If an argument ensues the discussion is likely to get down to what is meant by “reasonable care”. If it gets to this point, you have already lost the argument. They have knowingly breached their OHS duties and they have most likely decided that you are a bit of a prick for pointing this out to them; and “this is why OHS is a waste of time if you’re going to go me for not washing my hands. You’re not my mother”.
The recent protests against lockdown have argued that looking after one’s own health and the health and safety of others is an issue of personal freedom. Maybe, in normal days that have no global infection risks, but the freedom and social obligations change when there is a fatal infection killing over 4 million people and affecting the health of almost 200 million more. The OHS obligations have not changed. The OHS laws were written in a general fashion so that they are able to be applied to a wide range of workplace health and safety issues. The duty to keep yourself and others safe is the same for COVID-19 transmission as it is for erecting scaffolding correctly, as it is for not bullying or sexually harassing someone at work.
Various Australian governments are starting to think about what consequences they want to impose on those who refuse to comply with public health requirements. Employers are going to start having to think about this too and waiting for government guidance is going to be of little help.
The default response for an employer is to seek the assistance of a law firm. That law firm will help with setting some operational parameters and those parameters will be based, primarily, on industrial relations (IR) laws because most lawyers are comfortable with those laws and the legal structures that support those IR laws and their industry. These requests for assistance from the government and the law, rather than taking one’s own decisions, are a continuance of the wilful ignorance, or complacency, employers’ employ to their OHS duties.
OHS duties can be uncomfortable to implement. COVID-19 is going to be a real bitch to manage, partly, because Australian employers, outside of the healthcare sector, have not had to deal with communicable infections beyond seasonal influenza and that risk has been managed by annual vaccinations and sick leave entitlements. COVID-19 is a disease that will require changes to the way a business operates and the design of workplaces – those types of changes that employers dread and about which they will apply any argument or legal loophole to avoid or minimise. The reality is that these changes are unavoidable for any employer who is going to satisfy their OHS duties.
The issue of reasonable and reasonably practicable is going to be more prominent in the control of COVID19 than any previous workplace hazard. Any employer who invokes “reasonably practicable” in their management of COVID19 is operating contrary to the aims of the OHS laws, the welfare of their workers, their social duties to their communities and the sustainability of their businesses. Employers hold a positive duty of care and should be asking “What can we do to make our workplaces as safe as possible against COVID19?”; not “what is reasonably practicable”, but “what can we do”. It can be argued that reasonable practicability should be suspended from the OHS duties of workers and employers during a pandemic and a country’s recovery.
The major question being asked by some Australian employers is “should vaccination against COVID19 be mandatory?” This is the wrong question and is diversionary. The better question is “should vaccination against COVID19 be voluntary?” and under the OHS laws and considering the duties on employers and workers, the answer must be a definite No.
Factor in the contemporary OHS obligation to manage and prevent psychological ill-health and harm, it is even easier to justify mandatory vaccination as vaccination is likely to reduce the fear of infection and of infecting others and ease many of the fears of returning to work.
In a court case over an unfair dismissal in the Fair Work Commission (FWC) (see what I mean about IR laws and structures) involving Goodstart Early Learning Centres, Charles Power and Stefania Silvestro of Holding Redlich wrote about Goodstart’s OHS obligations:
“The Work Health and Safety Act 2011 (Qld) required Goodstart to ensure, as far as reasonably practicable, the health and safety of its childcare workers and the children in its care. Goodstart also had unique statutory obligations requiring it to prevent the spread of infectious diseases and to implement policies accordingly. On this point, the FWC highlighted that Goodstart operated in a highly regulated industry, where, due to the vulnerability of children, safety was of paramount importance. Goodstart could also be legally responsible for the transmission of infectious diseases within its centres. For those reasons, it was not only logical but necessary for Goodstart to have stringent health and safety procedures in place – mandatory vaccination was consistent with managing those risks”
The Australian Broadcasting Corporation has an excellent article that looks at the issue of mandating vaccinations more generally. There is little argument that aged care and healthcare workers must be fully vaccinated, although there remains political hesitancy. Australia is watching the moves in the United States, but the different work-related health schemes and insurances to those in Australia, render a lot of the arguments less relevant. (Those readers wanting a more legal view on US mandatory moves could consider this article) The United Kingdom may be a better comparison due to the similarity of nationalised health services and OHS laws. On June 22, 2021, Professor Melinda Mills wrote about the ethical dilemmas with mandatory vaccinations and concluded with
“Even if it is possible and it works, should employers make vaccination mandatory? Or is a carrot more effective than a stick? Instead of always bringing out the stick, it might be more effective to cultivate carrot policies. Remember that we struggle to assess our own risk, from overestimating our risk of a blood clot to keenly buying lottery tickets. Experiments in the US found that giving someone a date, time, convenient location and saying “this vaccine is personally reserved for you” has improved results in terms of vaccinate uptake. Building carrot policies and incentives to help workers understand why vaccination protects might be more effective than the mandatory stick, while we cannot forget that the central crux of the vaccination conundrum is this: protecting the fundamental right of one might endanger the wellbeing of another.”
If ever there was a time when the ethical underpinnings of OHS law and management needed debating, it’s now and it must be confronting.