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The mandate minefield – COVID vaccines for staff and patients

Policymakers are facing growing calls to mandate vaccines for health workers, as well as ancillary staff. But whether this will extend to private eye health practices remains to be seen. And can you require patients to be fully vaccinated? Insight dissects the issue.

On 22 March this year, Australian eyecare professionals and their support staff became eligible for COVID-19 vaccinations; second in the queue as part of Phase 1b.

At the time Australia thought it had figured out how to beat the virus with snap lockdowns and contact tracing. Over the proceeding eight months, however, the situation has changed dramatically, driven by the highly infectious Delta variant. Instead, the nation’s worst-affected states have opted to vaccinate their way out of the crisis.

The seriousness of the situation has been the impetus for a raft of daring vaccine initiatives that are having flow-on effects for the nation’s ophthalmic workforce

These include mandatory vaccination workplace policies, laws allowing optometrists to prepare and administer vaccines and the Therapeutic Goods Administration loosening regulations to let businesses incentivise fully vaccinated customers with competitions and prizes.

While a lot of these initiatives vary depending on the state or territory, it has raised a host of questions, particularly for owners of small-to-medium private health businesses wanting to mandate vaccines for their staff, and develop policies requiring patients to be fully vaccinated before entering the practice.

Mandatory workplace vaccinations

Until recently, mandatory vaccinations mainly only applied to aged care providers and hotel quarantine workers. The Federal Government has been reluctant to see such public health orders extend into other industries, with Prime Minister Mr Scott Morrison stating that doing so would amount to a mandatory vaccination program “by stealth”.

As such, the Federal Government has left it up to individual businesses to take into account their particular circumstances. This lack of clear direction is challenging for many employers who are concerned they may open themselves up to legal jeopardy. Some employer groups have called on the government to provide indemnity, which has fallen on deaf ears.

In recent weeks, however, momentum has been growing behind the need to vaccinate the healthcare workforce, taking the decision entirely out of the hands of health and medical practices, perhaps much to the relief of employers.

It’s been reported that the Australian Health Protection Principal Committee (AHPPC) recently met with the National Cabinet to try achieve a nationwide consensus on mandatory vaccination for healthcare workers, but whether this extends to optometrists or ophthalmologists working in their private practices remains to be seen.

At the time of writing, the Tasmanian Government had been the most audacious with a public health order requiring all health and medical professionals (including optometry practices and ophthalmology clinics and their ancillary staff and cleaners etc) to be vaccinated – regardless of whether they practise privately or publicly. It set a 31 October deadline for the first dose, with details yet to be released about the second dose.

Other states – such as Western Australia and New South Wales – have developed policies to mandate vaccinations for health workers, but they appear to fall short of capturing privately practising allied health practitioners like optometrists.

In WA, for example, an optometrist would need to be vaccinated if they are working in a public setting, a government spokesperson confirmed. In NSW, the government has written public health orders mandating vaccines for healthcare workers in public and private hospitals. Optometrists in the state, however, have been required to have their first vaccination by September 20 if they lived in a local government area (LGA) of concern and needed to travel outside of that LGA for work. Those working in aged care facilities are also required to be vaccinated.

The Northern Territory has indicated mandating vaccines for health workers, but whether this will be applied to eyecare professionals is unclear. Meanwhile, many expect Victoria will soon introduce a health worker vaccine mandate, after recently applying it to the construction sector.

The AMA has advocated for nationally consistent public health orders of state and territory governments to authorise mandatory vaccinations across the entire healthcare system, including support staff like cleaners, receptionists and contractors.

“Australians must understand that we will be living with COVID-19 for a long time to come and that will inevitably involve a longer, heavier than normal reliance on our doctors, nurses, hospitals and allied health,” AMA president Dr Omar Khorshid said.

“We need to bring these workers and the environment they work in out of crisis mode and the first step towards that is to protect them through vaccination. This is about healthcare worker safety and the safety of patients, and not about vaccines by force.”

The AMA has also proposed nationally consistent public health orders be issued by state and territory governments to provide legal protection to any employer who can also reasonably establish worker safety would benefit from a workplace vaccine mandate. Longer term, statutory coverage may be required.

“SPC and Qantas have taken the lead mandating vaccines for their workforces, but we know it’s very complex and expensive for small employers to meet with the legalities required. National Cabinet needs to coordinate state and territory action to give legal certainty,” Khorshid added.

Without a public health order, what are my rights?

Even if state and territory governments do mandate healthcare worker vaccinations through public health orders, there is no guarantee they will extend as far as privately-run eye health facilities.

In the absence of concrete orders, it is ultimately up to individual employers to determine if they want to mandate staff vaccinations, taking into account their particular set of circumstances.

Optometry Australia chief clinical officer Mr Luke Arundel told Insight that it’s a rapidly evolving, high profile and controversial issue – and one that’s creating a confusing landscape for employers.

Luke Arundel, Optometry Australia.

“This lack of clear direction is challenging for many employers, given all businesses are vulnerable to external factors, including government policy changes, the impact of COVID-19 outbreaks and lockdowns, and changing guidance about vaccine eligibility and supply,” he said.

“However, employers can take some guidance from recent decisions of the Fair Work Commission, which, while not definitive, point to a trend that is moving towards allowing mandatory vaccination in more circumstances.”

For optometry practices, Arundel said these decisions have clarified:

  • mandatory vaccination is more likely to be acceptable if social distancing is not possible in a workplace, and;
  • an employer’s statutory obligations to patients, clients and members of the public are relevant to decisions regarding mandatory vaccination, particularly if the work involves providing care or interacting with vulnerable people.

Fair Work’s advice included a tiered system, with Tiers 1 and 2 more likely to have reasonable grounds for mandating vaccinations.

  • Tier 1 work — employees interact with high-risk people (eg border control, hotel quarantine)
  • Tier 2 work — employees interact with vulnerable people (eg healthcare or aged care workers)
  • Tier 3 work — employees with public interaction (eg retail workers at essential stores)
  • Tier 4 work — employees with minimal face-to-face interaction

Under the Fair Work Ombudsman guidelines, Arundel said optometry practices are likely to be considered either Tier 2 or Tier 3 workplaces.

“The nature of optometry workplaces involves optometrists and other clinical staff interacting with each other and having close contact with patients during eye examinations. This means social distancing is not always possible, which would make most practices a Tier 3 workplace,” he said.

“Optometry practices with particularly vulnerable or elderly patient bases may be considered Tier 2 workplaces. The reasonableness of a mandatory vaccination direction for Tier 3 workplaces also depends on the extent of community transmission in the surrounding area of the optometry practice and the availability of vaccines. As all allied health professionals are entitled to priority access to a COVID-19 vaccination, the availability of vaccines in not an objective problem for optometrists.”

Arundel said Optometry Australia encouraged members to review the guidelines in the HR section of the OA website for implementing a vaccination policy in their workplace and to seek legal advice before making any decisions about mandatory vaccinations in their workplace.

“As we move to ‘living with the virus’ and trying to vaccinate our way out of this pandemic, it is becoming increasingly likely that staff and practitioners being vaccinated will be a requirement for working in the health sector,” he said.

Can I require my patients to be vaccinated?

Once all Australians have had the chance to access a vaccine, Arundel expected the issue of ‘no jab, no entry’ to be high on the agenda for businesses.

“We’ve seen a wildly variable approach in the US with some states legislating against this kind of ‘discrimination’ and others encouraging it,” he said.

Ms Athena Koelmeyer is the managing director of the Sydney firm Workplace Law and said the various state and territory governments would help by issuing public health orders such as those for health workers.

Athena Koelmeyer, of Workplace Law, says businesses owners should keep a very close eye on the public health order requirements when announced.

For example, in NSW, she said the roadmap to freedom unveiled for the fully vaccinated was already quite specific as to what fully vaccinated people will be able to do – and therefore conversely what unvaccinated people will not.

“Of particular interest might be the statement that unvaccinated people will only be able to access critical retail – fully vaccinated people will be able to shop provided that the store complies with the four square-metre rule. Victoria has promised crystal clear guidelines, which I suspect will be along similar lines to the NSW ones,” she said.

“In summary then, I would suggest that your readers keep a very close eye on the public health order requirements that are being discussed now and which will be formalised [soon]. It is a good idea for your readers to develop not only policies, but procedures for implementing a requirement that customers be vaccinated that is consistent with the local health orders at the time.”

She said properly developed procedures will be important as there will need to be some mechanism to sight the vaccination certificate of the customer – or the medical contraindication certificate if they are unable to be vaccinated. This is sensitive information under the federal Privacy Act and so businesses will need to think about what they do with the certificates sighted or collected by them.

“It may be that, as the NSW Government has flagged, the Service NSW app will have a function that indicates vaccination status that will pop up when a person signs in with the QR code, meaning the business doesn’t need to collect the information itself, but it would still be a good idea to prepare the policy as if sighting was required, just in case,” she said.

“The final thing for businesses to consider is what measures they will retain to manage the risk of customers who have medical contraindications and cannot be vaccinated.  This might include continuing to wear masks indoors – likely to be required by public health orders for some time to come anyway – maintain proper social distancing, and maintain other hygiene measures such as extra sanitising, cleaning etc.”

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