Does your charity need to develop a vaccination policy?

To kick off our new Charity Policy Watch series, we take a look at how charities can navigate the issue of developing a vaccination policy

Vaccination has been a hot topic in Australia in recent months, with states and territories racing to drive COVID-19 vaccination (and more recently booster) rates up so the country can open up again safely.

But as people return to the office, many organisations are considering whether a vaccination policy is needed for their workplace. Charities are no exception. 

To kick off Pro Bono News’ new Charity Policy Watch series – which will examine how charities can navigate difficult policy dilemmas – we dive into the issue of workplace vaccination. 

The Institute of Community Directors Australia (ICDA) has recently worked with leading law firm Maddocks to develop resources to help charities in this area, so we spoke with Maddocks partner Catherine Dunlop to answer some of the sector’s burning questions on the issue.    

How do I know if my charity needs a vaccination policy? 

While some charities fall under industries that require mandatory vaccinations – you can check out the rules for each state and territory below – for other organisations it will not be as clear cut.

The Fairwork Ombudsman has issued guidance on COVID-19 vaccinations in the workplace, which explains that employers can direct their employees to get jabbed “if the direction is lawful and reasonable”. 

This guidance includes a tiered system to help gauge if such a mandate is likely to be reasonable.

It says a vaccine mandate is likely reasonable for employees performing Tier 1 or Tier 2 work – where there is interaction with people with an increased risk of COVID infection or those who are immunocompromised. 

But Dunlop believes that a mandatory vaccination policy is something almost all charities need to consider. 

“I think when you have people who are working together, providing services together, and meeting with people, unless you’re doing it outside all the time – which very few organisations are – I do think you need a mandatory vaccination policy,” Dunlop said. 

“This is particularly true if you’re meeting with vulnerable people. The reason being the very significant risk that [immunocompromised people] will become ill or die.

“Vaccination is the most effective and efficient means we’ve got to combat the risk.” 

How can charities go about developing a vaccination policy?     

Dunlop said there were three steps charities needed to take when developing a vaccination policy. 

Step one – Risk assessment 

While Dunlop acknowledged that a risk assessment can conjure images of “some terribly complicated document”, she said this was not something charities needed to fear. 

Organisations simply need to consider what it is they do that may expose people to COVID. That can be as simple as when employees meet together, or when staff interact with people who are vulnerable.

Charities then need to think about what protective measures they have in place now, such as mask wearing or deep cleaning.

Dunlop noted these measures were not as effective as a vaccine, which reduces the risk of transmission because vaccinated people are infectious for a shorter period of time.

She said a risk assessment could be a very simple document, but was a useful one to outline why a policy was being developed, even if only a couple of paragraphs. 

“It’s important to put it in writing because it goes to your thinking at a point in time. And you might want to review it in 12 months when [things may be] a lot better,” she said. 

Step two – Consultation

This is a very important step for any organisation, as highlighted by a recent Fair Work Commission ruling.

The commission ruled a vaccine mandate for all workers at BHP’s Mt Arthur coal mine was not “a lawful or reasonable direction” because BHP did not consult adequately with its workers. 

Dunlop said undertaking a consultation did not mean your employees were going to agree, but it was important to hold a meaningful process.

“They may disagree wildly, or they might be relieved, but we need to consult [with them],” she said.

Step three – Draft a policy 

If your organisation has thought about risk, and undergone consultation, it is then time to draft a policy.

Luckily for resource-strapped organisations, ICDA and Maddocks have developed a free vaccination policy template (you can find below) that charities can use. 

This template includes sections on exemptions, procedures and responsibilities that can be tailored to an organisation’s needs.

“This should provide a relatively simple process that can be adapted for your purposes and then consulted on with your people to see how they feel about it,” Dunlop said.

How do volunteers fit into this? Should they be included in a vaccination policy?

Dunlop said it is up to an organisation whether they want to include volunteers in a vaccination policy.

But she believes if you have a vaccination policy for employees, you should also extend it to volunteers because the risk of transmission is likely to be the same.

She notes you can also choose to implement a policy requiring vaccination for people who enter your premises. 

“Now that has two elements. You may or may not do that for people who use your services. They may be vulnerable and you may decide that you don’t want to stop the provision of services to people who aren’t vaccinated,” she said.

“But you might require it for consultants and other people who visit. And if they aren’t vaccinated, you can do various things like meet online.

“[Charities] should think about how they can make their workplace as safe as possible and reduce the risk that people who are unvaccinated attend our workplace.”

How can charities deal with staff who don’t want to get vaccinated?

The Fairwork Ombudsman’s guidance states that if an employee gives a legitimate reason for not being vaccinated, employers should consider if there are any other options available such as working remotely.

It said in some circumstances where an employee refuses to be vaccinated, employers may be able to consider disciplinary action, but whether this is reasonable “will depend on the circumstances”. 

Justice Connect’s Not-for-profit Law service has also provided resources to help NFPs manage vaccines in the workplace (which you can find below). 

These resources include a handy flowchart explaining what an organisation can do if an employee refuses to get vaccinated.  

This flowchart states that you may be able to take disciplinary action including employment termination if an employee doesn’t have a legitimate reason, such as a medical exemption, and the vaccination direction is based on:

• a public health order;
• a lawful and reasonable direction; and/or
• an employment contract or enterprise agreement.

Dunlop said if charities have done their risk assessment and consulted, it’s very likely the policy will be a lawful and reasonable direction. 

But she said terminating someone’s employment for refusing the vaccine should be the last resort.  

“This policy is not actually about trying to sack people, it’s about trying to make people safe and you don’t rush to termination,” she said.

“You’ll hopefully encourage the person to go and speak to their GP, provide them with some information, have a conversation with them, and support them.

“But ultimately, if they do not want to get vaccinated, you may think they represent a risk to people in the workplace. And so it might be a question of saying… we now need you to either become vaccinated or we have to end your employment.”      

Why should charities – particularly smaller ones – put resources towards implementing a vaccine policy?  

While a vaccination policy could appear daunting for a resource-strapped smaller charity, Dunlop said it doesn’t take too much effort to be implemented.

She said the risk assessment doesn’t have to be very detailed, it shouldn’t take too long to make a policy template fit for your purpose, and the consultation is just about providing people an opportunity to be heard. 

“So this is not days of work. It should be a few hours and then a few hours more to revisit it later on,” she said.

“But it can be very important in terms of the health and safety of your people and setting the benchmark of the sort of organisation that you want to be and how you want to protect your people from COVID going forward.”

Dunlop also noted that the Fair Work Commission ruling on BHP – while it didn’t support their policy based on the lack of consultation ­– provided really useful information about how it was likely to view mandatory vaccination policies going forward.

She said the commission made the point that it had accepted vaccination was the most effective control available to combat the risks posed by COVID-19.

And it stated that even with higher vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace where people interact.

Dunlop concluded that while Australia was in a relatively stable period at the moment where things were opening up, there was still a significant risk in the community that was not going away.    

“And mandatory vaccination policies, if implemented well, are one way that charities can take control of the safety of their workforce and really make work a safe place to be for people,” she said.

“And I think that’s really, really important.”