Mandatory Vaccination Policies in South Australia16 November 2021
Insights from the management of mandatory vaccination policies in other jurisdictions
Over the last few months, our Workplace team has been preparing advice on vaccination policies and government vaccination mandates across the country, which is helpful context in terms of what we can expect to see in South Australia.
Our advice to employers in New South Wales and Victoria has been that they can, and in some circumstances must, mandate COVID-19 vaccination, provided the direction to be vaccinated is “lawful and reasonable”. A number of factors are used to determine whether these directions are lawful and reasonable, including:
the four tiers of employees outlined by the Fair Work Ombudsman—vaccination mandates are more likely to be lawful and reasonable for employees in tiers 1 and 2
current levels of COVID-19 in the community
future expectations of COVID-19 levels in the community, and
current border restrictions with other states that have high rates of COVID-19.
The lawfulness and reasonableness of a vaccination mandate can differ for employees within the same company. Employees who travel (particularly to areas with community transmission) or are required to interact with members of the public as part of their job are more likely to meet the lawful and reasonable threshold. However, employees from the same company who, for example, work from home and do not have to deal with the public are less likely to meet this threshold. This advice is consistent across several sectors, including retail, manufacturing, and office work.
Our advice in Victoria has also been guided largely by various directions issued by that State’s Chief Health Officer, mandating vaccinations across many industries including, most recently, requiring employers to ensure almost all unvaccinated workers are not permitted to work outside their ordinary place of residence without a medical exemption, regardless of their occupation or industry.
The advice has been different in other “COVID-free” states but in each instance, we have recommended that the employer approach the risk like any other health and safety issue. This means employers should carry out a risk assessment to consider their unique circumstances and, where appropriate, consult with their workforce about what they are proposing to do. Where required, we have assisted clients with the risk assessment and legal analysis.
Employer mandated COVID-19 vaccination policies in South Australia
Turning to South Australia, we have provided mandatory vaccination policy advice to employers based in Adelaide, but any mandate will only be permitted where the direction is lawful and reasonable.
The SA Government has mandated vaccination for the following industries and employees:
All residential aged care facility staff, contractors and volunteers were required to have received at least one dose of a COVID-19 vaccine by 17 September.
All healthcare workers in public and private hospitals must have received at least one dose of a COVID-19 vaccine by 1 November.
Any person who engages in work or performs duties for SA Police must receive at least one dose of a COVID-19 vaccine by 15 November.
These vaccination mandates have been made either under Public Health Orders or following directions from the Federal Government.
Preparing for open borders
When the borders open in SA, presumably COVID-19 case numbers will increase, which will change its risk profile. Any risk assessment will need to factor this in and we expect, as per the position in NSW and Vic, that mandating vaccination in the workplace will be increasingly seen as a lawful and reasonable component of an employer’s existing control measures to minimise the spread of COVID-19 in the workplace, so far as is reasonably practicable. Further, any future Public Health Orders, like those proposed by the Australian Hotel Association and Business SA, will impact this assessment—as was the case within the healthcare, residential aged care and policing sectors.
For SA employers, now is a good time to start assessing the risk and consulting with employees about this issue if you haven’t been already. With the imminent travel restrictions lifting soon and ‘“booster shots” ordered for the new year, it’s clear this issue isn’t going away anytime soon.