CV4 - Developing Policies for Vaccination, Rapid Tests and Temperature Screening in Aquatic Facilities

Purpose

To provide owners and operators of aquatic facilities and swim schools guidance on developing policies in relation to vaccinations, rapid tests and/or temperature screening to comply with local health orders and reduce the likelihood of the transmission of COVID-19 within aquatic facilities.

The Guideline is designed and intended to provide general information only in summary form and is current at the time of publication. The contents do not constitute legal or professional advice and are not intended to be a substitute for legal or other professional advice and should not be relied upon as such.

Scope

This Guideline provides an aquatic industry contextualisation of the Fair Work Ombudsman Australia framework for the ‘reasonableness’ requirements of vaccination as a condition of employment or patronage.

Organisations and individuals are encouraged to seek their own legal advice or other professional advice in relation to this matter.

The framework is provided to support aquatic facilities and swim schools that determine that mandated vaccines is within their best interest, either to comply with local health laws or as a part of the organisation’s overall work health safety management system.

The primary guidance around the requirement to ensure staff and/or patrons are vaccinated comes from local State / Territory health orders which should  be consulted in the first instance.

Background and context

Employers have a duty under the model Work Health and Safety (WHS) laws to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace.

Due to existing Work Health Safety obligations, local health laws and/or the risk appetite of individual organisations, aquatic facility owners and operators may determine to mandate either vaccines and/or routine negative COVID-19 tests for their staff and/or patrons.

It should be noted that health advice and scientific consensus advise that vaccines likely reduce the likelihood of COVID-19 transmission in all settings, including aquatic facilities and swim schools, and significantly reduce the likelihood of serious illness and death resulting from any transmission event. This is very weighty advice and should be considered accordingly by aquatic facility owners and operators in considering their health and safety obligations to their workforce and customers.

Temperature checks

Owners and operators of aquatic facilities may consider implementing a process to screen workers and/or patrons before they enter the workplace.

Conducting temperature checks with touch-free thermometers can be used in combination with other measures but they should not be solely relied on.

• Temperature checks do not indicate whether a person has COVID-19. A person could have a temperature for another reason unrelated to COVID-19, and
• people with COVID-19 may also be asymptomatic or on medication that reduces their temperature.

For more information on temperature checks and related health monitoring measures, see Safe Work Australia: https://www.safeworkaustralia.gov.au/covid-19-information-workplaces/industry-information/general-industry-information/health-monitoring

Rapid antigen testing

The Therapeutic Goods Administration (TGA) has approved a number of rapid antigen tests, or rapid antigen point of care tests (PoCTs) for supply in Australia.

The TGA currently requires health care practitioner involvement in PoCT testing and there is a current prohibition on self-testing (home testing) however this is being reviewed (at the time of writing) and it is anticipated these will be available for home use in late 2021 and early 2022.

Local State / Territory public health guidance may include guidance on the use of PoCTs in aquatic facilities and swim schools. Refer to local public health guidance.

Managing requirements for patrons to be vaccinated (where applicable)

Prior to making a determination that mandating vaccines is an appropriate course of action, aquatic facility owners and operators should consult their local health rules and seek appropriate advice.

It is noted that at the time of writing swimming pools and other businesses are being signalled as being opened only to vaccinated persons however in the near future some jurisdictions will be permitted to open to non-vaccinated persons.

If there is no specific law requiring staff and patrons of aquatic facilities to be vaccinated, individuals and aquatic facility owners and operators are encouraged to obtain legal advice about their own specific circumstances, and to carefully consider the position of vulnerable groups in the community before imposing any blanket COVID-19 vaccination policies or conditions.

The Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA), and the Age Discrimination Act 2004 (Cth) (ADA) make it unlawful to discriminate on the grounds of pregnancy, disability and age in many areas of public life, including in the provision of goods, services and facilities.

‘Disability’ is broadly defined in the DDA and includes past, present and future disabilities, as well as imputed disabilities.

A strict rule or condition that requires COVID-19 vaccination as a condition of entry, or as a condition for the delivery or provision of goods, services or facilities, may engage the ‘indirect discrimination’ provisions in the SDA, the DDA and the ADA. Indirect discrimination will only be unlawful if the rule or condition which is imposed is not reasonable - however, the question of reasonableness in anti-discrimination legislation is very dependent on the particular facts of the rule or condition and the way in which it is imposed.

Whether a court considers it ‘reasonable’ for a business or service provider to make COVID-19 vaccination a condition of entry, or a condition for the delivery or provision of goods, services or facilities is likely to be highly fact dependent, taking into account all the circumstances. It may consider information such as:

• The existence and scope of any relevant public health orders.
• The reasons advanced in favour of the COVID–19 vaccination condition, including operational requirements and reasonable business grounds.
• The nature of the goods/services/facilities being delivered. NB: It can be expected that a court would strictly scrutinise the reasonableness of any measure that had the effect of seriously limiting or depriving people with disability of essential services.
• The physical space of the location (e.g. the aquatic facility) and associated risk of transmission.
• Issues relating to an employee’s disability, age, pregnancy or medical condition.
• The nature and extent of the disadvantage resulting from the imposition or proposed imposition of the COVID–19 vaccination condition.
• The feasibility of overcoming or mitigating any disadvantage to the person attempting to access goods/services/facilities by the COVID–19 vaccine condition.
• Whether the disadvantage to the person attempting to access goods/services/facilities is proportionate to the result sought by the business or service provider.
• Whether the business or service provider has close contact with people who are most vulnerable to severe COVID-19 health impacts. For example, people working in aged care, disability care, health care, people over 60 or people with respiratory conditions.
• Whether the business or service provider interacts with people who have an elevated risk of being infected with COVID-19. For example, medical professionals, flight crew, border control or hotel quarantine workers.
• Whether the business or service provider provides any opportunity for people who cannot be vaccinated to access its goods/services/facilities.
• The incidence, severity and distribution of COVID-19 in the areas where the business or service provider operates.
• The availability of the vaccine.
• Advice from medical and work health and safety bodies such as the Australian Health Protection Principal Committee and Safe Work Australia about COVID-19 and COVID-19 vaccinations at the relevant times, including duties owed by employers to staff and customers under work health and safety laws.
• Whether there are any alternative control methods that might reasonably achieve the business/ service provider’s objective without recourse to the condition, such as:
• testing regimes
• physical distancing
• personal protective equipment.

The SDA, DDA and ADA explicitly place the burden of proving ‘reasonableness’ on the person who requires compliance with the requirement or condition — in this case, the aquatic facility management, not the patron or staff member.

Section 48 of the Disability Discrimination Act 1992 (Cth) (DDA) provides that it is not unlawful for a person to discriminate against another person on the basis of disability — either directly or indirectly — if the person’s disability is an infectious disease and the discrimination is reasonably necessary to protect public health.

The exemption in section 48 of the DDA clearly applies to people who have a disability that is an infectious disease. ‘Infectious disease’ is not defined in the DDA but it appears likely that it would apply to COVID-19, as it has been accepted as applying to other transmissible viruses such as HIV.

Aquatic facilities and swim schools may encourage and recommend vaccination for their patrons however, in light of discrimination laws, are encouraged to provide alternative arrangements for reasonable adjustment.

Managing any State / Territory requirements to vaccinate workforce (where applicable)

Guidance from the Fair Work Ombudsman has stated that employers can only require their employees to be vaccinated where:

• a specific law (such as a State or Territory public health order) requires an employee to be vaccinated (see Legislation and public health orders requiring vaccination against coronavirus)
• the requirement is permitted by an enterprise agreement, other registered agreement or employment contract (see Agreements or contracts relating to vaccinations), or
• it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis (see Lawful and reasonable directions to get vaccinated).

Employers should also consider how protections for employees under anti-discrimination laws may apply.
For more information on mandating vaccines, see the Fair Work Ombudsman: https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace

Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable will be fact dependent and needs to be assessed on a case-by-case basis.

For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, State or Territory law that applies (for example, an anti-discrimination law).

There are a range of factors that may be relevant when determining whether a direction to an employee is reasonable. Things to take into consideration include:

• the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service)
• the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission among employees, customers or other members of the community
• the effectiveness of vaccines in reducing the risk of transmission or serious illness, including variants
• work health and safety obligations
• each employee’s circumstances, including their duties and the risks associated with their work
• whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
• vaccine availability.

When undertaking this case-by-case assessment, it may also be helpful as a general guide to divide work into four (4) broad tiers:

• Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (for example, employees working in hotel quarantine or border control).
• Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 (for example, employees working in health care or aged care).
• Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
• Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

Requiring a prospective employee to be vaccinated before starting work may be permissible.

Before requiring that a prospective employee be vaccinated before starting employment, employers should consider their obligations and responsibilities carefully, for example, under general protections or anti-discrimination laws.

Aquatic facility owners and operators should consider their obligations and responsibilities under anti-discrimination laws, which generally prohibit discrimination against employees in the workplace based on protected characteristics, such as disability.

Before requiring employees to be vaccinated, employers need to consider:

• Commonwealth, state or territory discrimination laws
• General protections provisions under the Fair Work Act.

An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with COVID-19, or giving COVID-19 to a person who is particularly vulnerable to the health impacts of COVID-19. See Table 1.

An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of COVID-19.

For employees performing Tier 3 work:

• where no community transmission of COVID-19 has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable
• where community transmission of COVID-19 is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.

Classification of tasks / staff roles within Fair Work vaccine framework

Aquatic facility staff vary in the level of responsibility and requirements to interact in close proximity and/or hands on capacities to members of the public, depending on their status as paid rescuers and their obligations under various Work Health Safety and other legal requirements.

For the purposes of clarity for aquatic facility owners, operators, regulators and the wider community, the following considerations apply to mandating vaccines for certain aquatic industry roles depending on the community context. These classifications are contained in Table 1.

The classification of a particular role within this framework depends upon the duties the staff member undertakes or has responsibility for undertaking and/or the vulnerability of the patrons that the staff member either interacts with or who could reasonably interact with on a given shift. In this case, the person responsible for rescue / CPR would be classified as the lifeguard for the purposes of the employer mandating that this employee should be vaccinated.

This guidance is not intended to override the requirement not to discriminate and/or any legitimate medical reasons why an employee could not be vaccinated. Employers should consult with their employees and determine if a person cannot be vaccinated - what other duties the employee could undertake to ensure appropriate protection of the employee’s health and safety.

The classification framework applies to the reasonableness and not necessarily the lawfulness. It is important to consider this entire Guideline as well as your organisation’s own context and seek advice as necessary.