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“ Mandatory vaccinations are not new to aged care as we have had these in place for influenza vaccinations at times .
“ It is important that employers carefully consider their position around requiring COVID vaccinations . Clear communication with employees and prospective employees is very important and must be informed by appropriate medical and professional advice .”
ANMF federal secretary Annie Butler agrees with the current health advice , and would not be in favour of mandatory vaccinations of nurses and healthcare workers in any setting until that changes .
She is sympathetic to the nurses in her union who have worries about taking the vaccine , especially when there are concerns about the vaccine ’ s effect on women of childbearing age . On average , Australia ’ s health workforce is predominantly female , and aged 20 to 34 years .
Studies have found that three-quarters of trials for any of the COVID-19 treatments or vaccines have explicitly excluded pregnant women without disclosing why , as reported by The Guardian .
The article discusses the idea that women from age 30 to 39 were among the most vaccine-hesitant groups in society .
One reason put forward is that up until 25 years ago , all women of childbearing age were excluded from clinical studies , with scientists assuming that the results of tests done on men could be applied to women . This is all part of a larger pattern of exclusion women have faced from health and science and contributing , in large part , to a distrust of the medical profession .
“ Most of our membership will be very keen to participate from what we gather . But , most of our members are female . Many of them are in that childbearing age . We need to be very careful about making sure we get the right advice to give to them ,” Butler says .
“ And then how the workplace will protect them . Let ’ s say they say it shouldn ’ t be given in pregnancy and we ’ ve got a pregnant nurse working in ICU . There ’ ll need to be arrangements made for her potentially .
“ The average age of your care worker is a little bit older , but they ’ re still predominantly female and they still would have younger women in that workforce . And so we are just being very cautious around that until we get some clear , firm advice from the Australian Technical Advisory Group on Immunisation .
“ The World Health Organization has just issued some cautions around it , but we need to understand it exactly and then Australia will make its own decisions .”
THE LEGAL ARGUMENT Butler does worry about what might happen if a workplace takes it upon themselves to mandate vaccines for workers .
“ So if the governments are saying , ‘ We ’ ll do everything we can to encourage people , but we can ’ t mandate it ,’ will employers have a right to themselves turn around and mandate the vaccine ? And so we ’ re trying to have discussions with the government about that , about what are the legal rights and responsibilities of everyone ,” she says .
“ There ’ s a bigger risk that employers say , ‘ I ’ m going to force you to have the vaccine or I ’ m going to sack you ,’ rather than go , ‘ Oh , but there ’ s still fundamental problems , lack of a proper infection prevention and control . There ’ s not good staffing .’”
So what , then , would happen if a nurse , or aged care worker refuses to get vaccinated . Can a workplace sack the worker ? And if so , does the worker have legal recourse ?
Recently , the Fair Work Commission ruled that a care worker who lost her job after she refused a flu jab will be allowed to argue she was unfairly dismissed .
Maria Corazon Glover refused a vaccination because of an allergic reaction she had 57 years ago , when she was a child living in the Philippines .
“ Well , there ’ s workplaces and then there ’ s workplaces ,” says Dr Giuseppe Carabetta , a senior lecturer in employment law at Sydney University .
“ The general starting position is that all employers in any workplace have a general common law right , so it ’ s an implied right , to issue lawful and reasonable orders .
“ Now with something like vaccines , it will come down to not whether the order to vaccinate is lawful . Because it is so unusual it will come down to the second element , which is , is it reasonable ?”
Three major considerations would be used to judge such a case .
Firstly , the nature of the job . Can the employer reasonably redeploy the worker to accommodate them while they still do their job . Secondly , the effectiveness of the vaccine . And thirdly , whether that person has a pre-existing
“ I wish the government would get in and solve the potential headache .
condition that might preclude them from taking a vaccine .
But even in that instance , the employer would only have to consider , again , if they can reasonably redeploy the worker and whether they could still complete their tasks .
Carabetta believes that it would be nearly impossible to mount an argument that an order to be vaccinated is unlawful in aged care or for frontline healthcare workers due to the nature of the job .
He says a firm stance by the government would avoid any potential legal headaches for workers and employers in the future .
“ From my point of view I wish the government would get in and solve the potential headache ,” he says .
“ My dear mum , she is in aged care . I think society would expect or wouldn ’ t be too shocked if you said that – as a general rule at least – aged care workers needed to have the vaccine against COVID .”
BEST WAY FORWARD Associate Professor Seale believes that the best way to ensure uptake among the health workforce includes educating them and allaying any fears they may have with the right tools and communication strategies .
This includes working with middle managers , as they are influential , trusted and can act as vaccine advocates and agents of change . They may also play a role addressing questions or concerns where they arise .
Making the vaccine as convenient to take as possible , making it available outside normal work hours is another key element to increase uptake .
“ There are going to be those staff members who are trusted , who can act as diffusers of information , and have the potential to influence uptake and acceptance in a way that a TV or radio ad , or a poster on the wall won ’ t be able to do . And here ’ s maybe where some peer to peer education may be needed ,” she says .
“ There will be misunderstandings , there will be misinformation passed around , and there will be those that will come out in the end and feel that they don ’ t want to get a vaccine .” ■ nursingreview . com . au | 27