There are professional, industrial and work health and safety (WHS) perspectives that shape the rights and obligations nurses and midwives’ need to consider when making personal decisions about the COVID-19 vaccination.
NSWNMA supports vaccination and strongly encourages all healthcare workers to be vaccinated if there is no medical contraindication.
NSWNMA is aware that some nurses and midwives have concerns about the safety of the vaccine.
NSWNMA is also aware that some nurses, midwives, students and AiNs may decide for their own reasons that they will not receive a COVID-19 vaccination under any circumstances.
The following information outlines the professional and legal perspectives that delineate the rights and obligations that should be considered when making a personal decision about vaccination:
Professional rights and obligations
The Nursing and Midwifery Board of Australia Position statement on nurses, midwives and vaccination makes it clear that registered nurses, enrolled nurses and midwives who are promoting anti-vaccination statements to patients and the public via social media which contradict the best available scientific evidence are in breach of their professional obligations and may be subject to regulatory action.
The National Boards and the Australian Health Practitioner Regulation Agency (AHPRA) have published a joint statement – Registered health practitioners and students: what you need to know about the COVID-19 vaccine rollout – to clarify their expectations in relation to giving, receiving and advising on and sharing information about COVID-19 vaccination.
In this advice it is clear that all registered health practitioners and students (particularly those undertaking placements in various practice settings) are strongly encouraged to have the full COVID-19 vaccination course as scheduled unless medically contraindicated.
The National Boards also state that all regulated practitioners have a responsibility to participate in efforts to promote the health of communities and meet obligations with respect to disease prevention including vaccination, health screening and the reporting of notifiable diseases.
The National Boards recognise that while some health practitioners may have a conscientious objection to COVID-19 vaccination, all practitioners, including students on placement, must comply with local employer, health service or health department policies, procedures and guidelines relating to COVID-19 vaccination. Any queries about these should be directed towards the individual employer, health service, state or territory health department and/or education provider for registered students.
Industrial rights and obligations
Mandatory vaccination of workers in certain workplaces is not a new feature of the working and legal landscape.
Currently in the NSW public health system, there are a number of well-established vaccination requirements for staff via NSW Ministry of Health policy directives. Private hospital providers also have developed similar expectations of their staff. These existing requirements have to date been relatively uncontroversial.
In residential aged care, it is a legal requirement for its workers (as well as visitors) to have the influenza vaccination. In the absence of the influenza vaccination, the worker or visitor are not permitted to enter a Residential Aged Care Facility (‘RACF’) unless exceptional / special circumstances exist. This existing requirement for an influenza vaccination in RACFs has been extended to include a similar requirement for its workers to have a COVID-19 vaccination as of mid-September 2021.
There have been three recent decisions by the Fair Work Commission regarding dismissals related to refusal of mandatory vaccinations, in the childcare sector and in aged care. In both cases the Fair Work Commission considered that it was a valid reason for the employers to dismiss the workers for refusing to have an influenza vaccination.
Work Health and Safety (WHS) rights and obligations
Employers are required to do what they can to eliminate or minimise the risks associated with exposure to COVID-19 for both their workers and patients/residents. The best way to eliminate exposure is to ensure people are not bringing the virus into the workplace. Personal protective equipment (PPE) certainly has a place, but it is a lower order control because it is attempting to minimise the risk of the virus spreading rather than stopping it getting into the facility in the first place.
Workers must follow reasonable instructions and cooperate with policy and procedure. There is existing case law to say that vaccination is a reasonable requirement when working with vulnerable persons.
More information
NSWNMA Position statement on COVID-19 vaccination
NSWNMA Policy on Work Health and Safety
ANMF Policy on Vaccination and Immunisation
AHPRA Position Statement: Registered health practitioners and students and COVID-19 vaccination
Key points on rights and obligations
Professional (National boards and APHRA): all practitioners, including students on placement, must comply with local employer, health service or health department policies, procedures and guidelines relating to COVID-19 vaccination.
Industrial (Fair Work Commission): In three cases in child care and in aged care, the Fair Work Commission considered that it was a valid reason for the employers to dismiss the workers for refusing to have a mandatory vaccination.
WHS Law: Workers must follow reasonable instructions and cooperate with policy and procedure. There is existing case law to say that vaccination is a reasonable requirement when working with vulnerable persons.