In 2020, the Queensland Law Society asked me to present a paper on the WorkCover implications of Covid-19.  Inherent in the request was the expectation that workers would make WorkCover claims for Covid-19 infections which occurred at work.

It seems the 2021 hot button issue is Mandatory Workplace Vaccination.  Many people have been asking me about the implications of mandatory workplace vaccination for workers, employers and the WorkCover regime in Queensland.

My expectation in 2020 was that we would not see a surge in WorkCover claims related to workplace infection with Covid.  Until we had genomic sequencing, I could not see how a worker would be able to establish, on the balance of probabilities, that their infection occurred at work.  Even if the evidence could establish that the infection occurred at work, it was difficult to see there would be many cases in which the worker would then be able to establish that the infection was caused by any breach of the employer’s duty of care.

I did anticipate an increase in workplace stress claims.  Apart from the surge in community mental health issues generally, I could see a great source of anxiety when workers and employers interpreted health directives differently.  The anecdotal experience of Kare Lawyers at least has confirmed my expectation was correct.  We have had an increase in inquiries related to workplace stress but we have not had any inquiries about Covid-19 infection in the workplace.

The questions I am now fielding relate to the potential liability of employers who require their staff to be vaccinated.

Mandatory vaccination is a fraught issue for employers.  There is no easy answer.  There are issues of bodily autonomy and privacy as well as employment issues related to discrimination and reasonable direction.  Many people are concerned about the ethics as well as the legality of mandatory vaccination as well as the ethics and legality of failing to mandate vaccinations in the workplace.  I do not propose to address these issues as they are outside my area of expertise.

I was recently asked whether an employer would void their WorkCover insurance policy if they required staff to be vaccinated.  This is certainly not the case.  WorkCover is a statutory insurance regime.  A worker will be entitled to WorkCover benefits (and the employer will be entitled to indemnity from WorkCover Queensland) provided the injury “arose out of” the worker’s employment.  If it did not arise out of employment, the worker is not entitled to WorkCover benefits but will also not have a claim against the employer.

If a worker makes it clear that they are only being vaccinated in order to maintain their employment and they develop a complication, arguably the complication amounts to an injury arising out of employment.  However, I anticipate there will be few cases where a worker will be able to prove they would not have been vaccinated without the mandate.  Committed anti-vaxxers are likely to accept termination of employment rather than submit to a vaccination.  Vaccine hesitant people are unlikely to have made a clear declaration that they would never have received the vaccination without the employer’s mandate.

Another query I received recently was the potential for vaccine injuries to blow out the WorkCover budget so that employers will be paying substantially higher premiums in future.  This is also unlikely.  Serious vaccine complications resulting in significant time away from work are rare.  Many people have chosen to be vaccinated without a mandate and would not have the right to claim WorkCover in the event of a complication.

The potential impact on WorkCover premiums of inadequate manual handling training in the workplace is far more significant.

Employers have a duty to provide a safe workplace for their workers and others who enter the workplace.  Some employers have argued they must mandate vaccination in order to discharge this duty to their own staff.  This argument will undoubtedly be raised in the event that a worker develops a serious complication from a vaccine they were forced to receive in order to maintain their employment and makes a common law claim for damages against the employer.

Ultimately, the Court will need to determine whether a worker has suffered an injury as a result of the negligence of their employer if the employer required the worker to be vaccinated in order to avoid the workplace infection of others in the workplace.  I expect the determination of the Court will depend on the nature of the workplace, any underlying health conditions on the part of the injured worker which may make them more vulnerable to the vaccine complications and the relative risk to the various parties.

If a vaccinated worker does contract Covid-19 in the workplace from an unvaccinated co-worker (assuming that could be proven on the balance of probabilities), there is the potential for the vaccinated worker to make a claim for damages against the employer for failing to mandate vaccines in the workplace.  This is also unlikely for a number of reasons.  The medical advice is that vaccinated people are significantly less likely to contract Covid at all and, if they do, to develop serious symptoms.  Even with genomic sequencing, it would be difficult to establish on the balance of probabilities that the infection occurred at work.  There is then the issue of whether the Court will find it is negligent for an employer not to mandate vaccines based on the state of the medical advice at the time.

If you are an employer considering mandating vaccines, I recommend you obtain the advice of an employment lawyer as to the reasonableness of the mandate and the manner in which it should be applied.  This will minimise the risk of Fair Work, Equal Opportunity or related proceedings.  However, you can at least rest assured that compensation for any work-related Covid infection or vaccine injuries are covered by WorkCover in Queensland.