This question comes from a paramedic educator who was asked, by a student, about immunisation for paramedics.
… the student asked whether they’d be able to secure employment without the range of vaccinations commonly required by State Ambulance Services in Australia. For instance, MMR, Tetanus, Polio, Hep B/A etc etc.
The student indicated that they were an objector to vaccinations, and as such did not want to get them. They then indicated that if an Ambulance Service wouldn’t employ them because they weren’t vaccinated the student would be prepared ‘to take them to court as an ambulance service shouldn’t be able to force me to have vaccinations.’
Anti discrimination law
People like to think that all discrimination is illegal, but of course it is not. To discriminate simply means to make a choice – or to quote from the Oxford dictionary (online) to ‘Recognize a distinction; differentiate’. Employers (and potential employers) do that all the time when they decide who they will offer employment to, and who will miss out.
What is illegal is making that distinction or differentiating on certain grounds. Under Commonwealth law it is illegal to discriminate between people on the basis of disability (Disability Discrimination Act 1992 (Cth); sex (Sex Discrimination Act 1984 (Cth); age (Age Discrimination Act 2004 (Cth), race (Racial Discrimination Act 1975 (Cth) or ‘race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, criminal record, marital or relationship status, impairment, mental, intellectual or psychiatric disability, physical disability, nationality, sexual orientation, and trade union activity (Australian Human Rights Commission Act 1986 (Cth). Similar provisions exist in state law – see
- Australian Capital Territory – Discrimination Act 1991
- New South Wales – Anti-Discrimination Act 1977
- Northern Territory – Anti-Discrimination Act 1996
- Queensland – Anti-Discrimination Act 1991
- South Australia – Equal Opportunity Act 1984
- Tasmania – Anti-Discrimination Act 1998
- Victoria – Equal Opportunity Act 2010
- Western Australia – Equal Opportunity Act 1984.
(Source: Australian Human Rights Commission, A quick guide to Australian discrimination laws, (u.d)).
But even so, discrimination is allowed if it goes to a person’s ability to do the job. It will not be unlawful discrimination to refuse to employ a blind person as a truck driver – the question really is whether or not the matter that is being used to determine the person’s employment really is directed to the work and whether or not any impediments can be overcome with ‘reasonable adjustment’ (see Occupational Health and Safety and Discrimination (January 5, 2010)).
The first question to be asked is whether refusing to employ someone who refused a vaccination would be discrimination on prohibited grounds. The only relevant grounds could be ‘political opinion’ and even then, I doubt that a person is refusing to make a political point, they just don’t want it. If there’s no unlawful discrimination, it would be hard to find a tribunal that would be willing to review a decision not to offer an applicant employment, but given the ambulance services (Northern Territory and Western Australia excepted) are government authorities it may be possible to seek a review under procedures to review government decisions and/or government employee appeals processes. Those process will not be cheap, or easy.
Assuming that the person can find a tribunal that is willing to review the decision, the more critical question will be become ‘is having a vaccination is essential for the job?’ One can think of three reasons the ambulance service would want to vaccinate its staff:
- To protect the staff from the risk of infection from patients;
- To protect patients from the risk of infection from staff; and
- To protect staff from the risk of infection from other staff.
It is well known that as an employer, an ambulance service has a duty to take reasonable steps to ensure that there is a safe workplace for employees (reasons 1 and 3 above) and that non-employees are not exposed to unnecessary risks (reason 2, above). But can a persons’ choice be accommodated?
First much of the risk, as I understand it, can be reduced by appropriate barriers – gloves, eye masks, hand washing etc, but nothing is foolproof so vaccination adds another level of protection. Do ambulance services require their staff to be vaccinated, or are vaccinations merely offered? If the later one could not refuse to employ a person who failed to take up the offer. If, on the other hand, having completed a risk assessment the ambulance service thought the only way to appropriate manage the risk was to require vaccination, then it becomes akin to PPE.
With Personal Protective Equipment, employers issue it and employees are required to use it. The obligations under Work Health and Safety Laws (or Occupational Health and Safety in WA and Victoria) is strict – that is neither the employee or employer can contract out of it. In simple terms an employee can’t say ‘I don’t like the PPE, I won’t wear but I’ll take the risk if I get injured’. The employee simply can’t take on that risk – in those circumstances the employer could still be prosecuted if the employee was injured and the employee would still be entitled to no fault workers compensation.
Even if you think the ‘nanny state’ has gone too far when it doesn’t allow people to choose whether to wear PPE or not for their own good, no-one could refuse to wear PPE or otherwise follow procedures that are required to safeguard other persons. Accordingly even if someone wanted to argue that an employee who was willing to accept the risk should be allowed to work without PPE, that could have no application of the purpose of the PPE was to protect other staff and patients.
As with a vaccination, if it has been determined that it is the only way to deal with the risk and no ‘reasonable accommodation’ can be made, then so be it.
Without going through the anti-discrimination legislation ‘chapter and verse’ my conclusion is that if a paramedic refused immunisations, and if the ambulance service required them, the ambulance service could refuse to offer employment. If the matter were tested it would be up to the ambulance service to show the reasoning process to show why the vaccinations were required (as opposed to ‘recommended’) and whether or not some alternative adjustment was sufficient to cover the risk to the employees and patients.
If there had been a robust risk assessment process and it could be shown that the vaccination procedures were required in order to meet the obligations under work (or occupational) health and safety laws then a person who refused those vaccinations would not be a suitable candidate for employment.