Mandatory Vaccinations: A workers’ compensation pickle Mandatory Vaccinations: A workers’ compensation pickle

Mandatory Vaccinations: A workers’ compensation pickle

4 November 2021 | COVID-19 Insights

Generally, employers have a statutory obligation under relevant workplace health and safety legislation to ensure (so far as reasonably practicable) the health and safety of its employees. Mandatory vaccination policies are, for some employers, now being considered as part of the mechanisms to help them carry out that statutory obligation. But what happens if an employee suffers an injury or even death from a mandatory vaccination?

The workers’ compensation framework

Workers’ compensation legislation differs between the States and Territories. Broadly, legislation requires there to be a connection between the “injury” suffered by an employee/worker and the employment before a claim is accepted. What constitutes an “injury” also differs, depending on the jurisdiction.

In Queensland, for example, if an employer implements a mandatory vaccination policy for its employees, and a worker sustains a severe reaction or dies due to the vaccine, the definition of “injury” would likely be met. This is because the worker’s employment will likely have been a significant contributing factor to the severe reaction or death (in circumstances where the worker was mandated to obtain the vaccine under the employer’s vaccination policy or direction).

While an “injury” from the vaccine is suffered, the right to compensation may not always be the case. For example, in Victoria, only a significant reaction to the vaccine may be considered an “injury”, and compensation is not available for mild symptoms such as allergic reactions, including anaphylaxis.

In NSW, iCare considers the following conduct by an employer to be relevant when considering if an “injury” arising from a vaccine is covered under workers’ compensation legislation:

  • “Took steps to arrange for its employees to be administered a COVID-19 vaccine.
  • Had encouraged or induced its employees to get vaccinated in order to obtain benefits for its business.
  • Permitted or directed employees to have a COVID-19 vaccination during ordinary working hours, or
  • Had provided instructions to employees relating to the administration of the vaccine.”

In Western Australia, for a worker to make a successful workers’ compensation claim for a COVID-19 vaccine related injury or disease, the approved insurer needs to be satisfied that:

  • the vaccine injury arose in, or out of, the course of the worker's employment;
  • for a disease, the worker’s employment must also be shown to be a significant contributing factor to the disease.

It is possible that the requirement to connect the COVID-19 vaccine injury or disease to the worker’s employment would be satisfied where the vaccine is a mandatory requirement or condition of the worker’s employment.  Further, the legislated presumption of work injury that applies when a health care worker contracts COVID-19 does not apply to a COVID-19 vaccine related injury or disease.

The COVID-19 vaccine claims scheme

The Australian Government scheme currently accepts claims between $5,000 and $20,000 if a person has suffered a moderate to significant impact following an adverse reaction to an approved vaccine (i.e. Pfizer, AstraZeneca, and Moderna). However, the scheme does not yet cover claims of over $20,000 or death, though the Australian Government says this is currently being developed. As such, there may still be some reliance on workers’ compensation claims for affected workers.

Implications for you

While there is some risk of a worker sustaining an “injury” from a COVID-19 vaccination, employers should bear in mind that they may also be held responsible if a worker sustains a COVID-19-related injury (or death) in the course of their employment (see Sara v G & S Sara Pty Ltd [2021] NSWPIC 286).

Employers should familiarise themselves with the workers’ compensation legislation applicable to them to understand the extent of compensation available (if any).


Looking for more information about mandatory COVID vaccinations in Australia? Check out our JabWatch page here.

Find out more information regarding our Workers' Compensation expertise here.

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Mark Wiemers

Mark Wiemers

Principal

Colby Treasure

Colby Treasure

Principal

Sharifah Al-Edrus

Sharifah Al-Edrus

Solicitor

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Looking for more information about mandatory COVID vaccinations in Australia? Check out our JabWatch page!