You recently hired a receptionist to work at your practice on a permanent employment contract. After she starts work, the receptionist tells you that she was not vaccinated as a child. She holds strong views about vaccinations and immunisation, and says that she will not agree to be immunised. The issue of staff immunisation is not addressed in her employment contract and was not discussed during the interview stage.
You are concerned about her working on reception in case she contracts illnesses, and also spreads these to patients visiting the clinic and to other staff.
There are a number of factors for you to consider in this scenario including:
These are considered in more detail below:
The RACGP’s newly released, Standards for general practices (5th Edition) provide guidance on staff vaccination, in the context of protecting staff members from being infected with vaccine-preventable infectious diseases and from transmitting these infections to patients. These note that practices should encourage members of the practice team to obtain immunisations recommended by the Australian Immunisation Handbook (10th Edition) based on their duties and immunisation status. The guidelines say, ‘The exact immunisation requirements will depend on the risk of infection based on the practice’s location, patient population and each practice team member’s duties.’
Under the guidelines, any natural immunity to vaccine-preventable diseases or immunisation status of practice team members should be recorded, with their consent. It cannot be assumed that staff will seroconvert post-immunisation (for example, hepatitis B). Therefore, it is recommended that post-immunisation status is serologically confirmed wherever possible and that further vaccinations are provided as required. Post-immunisation immunity, if known, should be documented.
The standards set out the following immunisations that can be considered for office-based health professionals – hepatitis B, influenza, pertussis, MMR (if non-immune), varicella (if seronegative).
Section 9.2 of the Medical Board of Australia’s Good medical practice: a code of conduct for doctors in Australia states, ‘Good medical practice involves making sure that you are immunised against relevant communicable diseases.’
This requirement minimises the risk of a healthcare worker contracting or disseminating infection in the course of their work.
It is entirely reasonable that a practice should have the same aspiration.
Ideally, you should discuss the practice’s requirement for immunisation during the interview process and resolve any issues then. You should not base any recruitment decision on a person’s refusal to be vaccinated as this could potentially lead to a discrimination claim.
Your employment offer letter and/or contract should require the employee to have immunisation against relevant illnesses appropriate to their role as a condition of employment. Evidence of immunisation should be provided before commencing work, if this is a requirement for the role.
If an employee objects to immunisation, you should meet with the employee and encourage immunisation against certain illnesses. You should explain the reasons for encouraging immunisation (for example, level of patient interaction, risk of becoming sick and/or spreading illness and that it is in the best interests of employees to be immunised to ensure their own workplace health and safety and the workplace health and safety of others at the practice.
You should remember that you are not in a treating relationship with the employee in the course of these discussions. You may wish to recommend that the employee seeks appropriate medical advice.
You should fully document your discussion with the employee and any response that you receive.
If an employee continues to refuse to be vaccinated, you should consider your options in light of the risks that arise from the employee not being vaccinated. These risks will be different depending on the employee’s position at your practice (for example, whether they are a receptionist or a nurse). There are a number of legal risks if you terminate an employee’s employment because they will not be vaccinated, and these risks must be weighed up against the risks to your practice under workplace health and safety legislation if you are unable ensure the health and safety of your employees because an employee is not vaccinated. You should seek legal advice in relation to the risks of termination if this is something you decide you want to pursue.
In light of the practice standards set out by the RACGP, practices need to have a system in place to consider the vaccination status of their staff, to comply with GP accreditation requirements. However, you should bear in mind that the RACGP guidelines specify that ‘informed consent’ is needed from staff members, meaning that they may refuse to disclose their immunisation status.
By: Lucy Charlesworth, B.A (Hons), GDL, LPC, Employment Lawyer – VIC, Avant Law
Feb 15, 2018