Today’s question comes from a Queensland paramedic who says:
QAS [Queensland Ambulance Service] have stated that all employees must have a flu vaccine. Just wondering if that can actually be enforced?
I referred my correspondent to an earlier post – Discrimination in ambulance employment for refusing a vaccine (January 2, 2017). They came back to me saying
Thank you. Just read the article, however I have been employed by QAS for many years. We received an email a few days ago stating we were ‘expected’ to obtain the vaccine. It has never been a mandatory requirement in the past. Just wondering if it could be legally enforced now ie could we lose our job if we refuse to have the vaccine?
I appreciate that there is a difference between applying for a job and continuing employment but I think my reasoning in that earlier answer still stands and should be read as part of my answer to the question.
I did ask for a copy of the notice to understand exactly what was being said – there’s a difference between ‘we expect everyone will want to get vaccinated’ and ‘we expect you all to get vaccinated’ and I did not want to mis-quote QAS. I have now been provided with Queensland Ambulance Service’s Medical Director’s Circular No. 21/2020 which says:
Annual vaccination strategies are an important and effective measure to protect against seasonal influenza. Each year a new influenza vaccination is developed to protect against the most likely strains of the virus expected to spread and cause illness. This year, more than ever due to the challenges presented by COVID-19, it is important for staff to be vaccinated against influenza to not only protect yourself but also the vulnerable patients within our community.
QAS staff can access a 2020 influenza vaccination from the following options:…
It goes on to list how and where QAS staff can access the vaccine and get reimbursed if there are out of pocket expenses. The circular goes on (emphasis in original):
Importantly, the Federal Government has mandated that all health professionals who enter an aged care facility must be immunized by 1 May 2020. Therefore, we need every frontline operational officer to confirm they have been immunized by that date…
… I ask that all staff take the time to get vaccinated against influenza to not only protect yourself, the patients, your colleagues, your families but also to protect our broader community.
An Australian Government Fact Sheet on Restrictions on entry into and visitors to aged care facilities confirms that ‘everyone entering a residential aged care facility need[s] to be vaccinated’. It also says ‘The state and territory directions include specific requirements in relation to flu vaccinations and are published on websites…’. The Queensland website refers to the Aged Care Direction (No.2) (effective date, 17 April 2020). That direction says (at ):
a person … must not enter or remain on the premises of a residential aged care facility in the State of Queensland from the time of publication of this direction until the end of the declared public health emergency if:…
(e) after 1 May 2020, the person does not have an up to date vaccination against influenza, if the vaccination is available to the person.
Example – the vaccination is not available to a person with a medical contraindication to the influenza vaccine
Paragraph 8 says:
Despite paragraphs 6(e), a person may enter and remain on the premises for the period reasonably required to provide an emergency service that is necessary for the effective operation of the residential aged care facility or to protect the health and safety of staff and residents, on the condition that the person must practise social distancing wherever possible, including maintaining a distance of at least 1.5 metres.
Example – A plumber may make emergency repairs if an employee or contractor with an up to date vaccination against influenza is unable to attend.
In my earlier post (Discrimination in ambulance employment for refusing a vaccine (January 2, 2017)) I talked about an ambulance service’s duty to look after both its staff and its patients. If there was a change in policy from recommended flu vaccination to compulsory flu vaccination on the basis that this was a response to risk as required by work health and safety legislation, there would need to be a process of consultation (Work Health and Safety Act 2011 (Qld) s 49). Equally if this represented some fundamental change in the job one was employed to do there would have to processes to amend duty statements and the like.
But that is not the case here; this is a regulatory change. There has been a change in the law that affects whether or not a paramedic can do the essential part of their job. If there was some change in the traffic licensing laws so that a different licence was needed to drive an ambulance, then that is something QAS would have to comply with. They would hope there was a lead in time (as there is here) and they would have to take steps to get their staff up to speed, but it is something they would have to comply with. The requirement to have a vaccination is something imposed on QAS rather than something of their choosing.
Can you be fired if you elect not to have the vaccine? I’m not an industrial lawyer so I won’t try to answer that question but I think one could conclude that if a paramedic refused the vaccine he or she could not do the job of a paramedic if they were prohibited from entering an aged care facility. The exception for an emergency would not be sufficient as many ambulance calls would not constitute an ‘emergency’ and QAS could send vaccinated paramedics. I would suggest that it would be perfectly reasonable for QAS to say to a paramedic ‘if you are not vaccinated, you cannot do your job’. Whether they would be under some obligation to find the paramedic another job (eg move them into coord or training) I am not prepared to say as I would have to study much more industrial/employment law. Presumably if they could not, or did not have to, find the person another job they could be sacked because, by their own decision, they have made it impossible to do the job they were employed to do.
The question was ‘could we lose our job if we refuse to have the vaccine?’. I think there is a safe answer you could not do your job if you refused the vaccine so QAS would have to do something. That would mean either they would have to find you another job within QAS or if there was no other job, it would seem likely that you could lose your job.
Critically my correspondent has misquoted the circular. It does not say paramedics are ”expected’ to obtain the vaccine’. It does say that the Commonwealth and Queensland governments have mandated that a person cannot enter an aged care facility without up to date flu vaccine. It’s not QAS that are making it mandatory, but QAS and QAS paramedics have to comply if they are to do what I would suggest is a common part of their job and that is enter aged care facilities.
For a related post – see Refusing a paramedic access due to Covid-19 fears (March 28, 2020). That post related to a facility that refused entry to a paramedic with a temperature in excess of 37.2 degrees. The current directions on access to aged care facilities including Aged Care Direction (No.2) now say that a person cannot enter the facility if they have a temperature of, or in excess of, 37.5 (see [6(c)].