The PSA has been supplied a DRAFT DCY COVID-19 Vaccination policy for consultation. The PSA will be meeting with DCJ representatives next week to discuss further and will be providing feedback in writing regarding the draft policy.
The policy outlines DCJ’s COVID-19 vaccination requirements, and its approach to identifying locations or worksites that DCJ have determined require vaccination as part of minimising the risk of serious illness or death within the workplace.
Medical Contraindication exemptions
The Draft policy outlines the process for workers to submit an exemption based on a medical contraindication. NOTE – The policy is in draft form at the moment and is open to further feedback/consultation.
A medical contraindication applies where an employee:
- provides a medical contraindication form completed by a registered medical practitioner in the template that is provided by NSW Health and approved by the Chief Health Officer and which:
- certifies that the employee is unable to receive the COVID-19 vaccination because they have a recognised medical contraindication;
- indicates whether the medical contraindication will permanently or temporarily prevent COVID-19 vaccination; and
- if the medical contraindication only temporarily prevents a COVID-19 vaccination, specifying when the person may be able to receive the COVID-19 vaccination.
Employees are to submit the medical contraindication form to their manager who will review and seek advice from People Business Partners.
Where there is contention about the medical evidence, advice may be sought from the government medical assessment provider.
Each case will be individually considered noting the medical condition, the working arrangements, and the type of work, the risk to others in the workplace, the availability of alternative work or anything else that is relevant.
Where an employee has a medical contraindication, consideration will be given to either:
- accepting the medical contraindication as fulfilling the vaccination requirement, or
- where the hazard in the workplace can’t otherwise be mitigated, providing a reasonable workplace adjustment to enable alternative work.
Staff already diagnosed with COVID
Members may have questions around what the process would be for staff who have already contracted COVID-19 and how this may affect their ability to comply with the direction, as some individuals may not be able to receive a vaccine if they have a recent diagnosis. The approved medical contraindication form has a section for this very scenario which allows for a medical practitioner to declare a temporary exemption of up to 6 months. You can view this form here.
Storage of and access to medical information
The storage of and access to medical information such as vaccination status remains a matter of concern. The draft policy currently states that DCJ has set up a Vaccination Register for employees to submit evidence of their vaccination accessible via Service Now for FACS and Justice. The Vaccination Register Guide provides instructions on how to submit evidence.
Where an employee does not have access to ServiceNow, they must provide evidence to their manager or departmental contact.
The PSA remains concerned surrounding the access to this data, and will be raising those concerns further.
What happens if a worker has an adverse reaction to the COVID-19 vaccine?
While this information is not contained within the Draft policy, there are some workers across NSW who have had adverse reactions to the vaccine who have made a workers compensation claim, which should cover workers to weekly payments compensation.
All compensation claims are different and will be determined as such, however, at minimum the following should be present in a claim:
- The worker’s employment must be a substantial or main contributing factor to the injury or illness. Relevant considerations to establish this include, whether there is a Public Health Order in place that requires you be vaccinated or if your employer permitted or directed employees to get the vaccine during work hours (it is important to note that the circumstances of each employee’s claim will be determined on the individual circumstances); and
- An adverse reaction that requires medical support or time off work. If you have an adverse reaction, you can make a claim through the usual workers compensation process, and the PSA can assist with this.
Employees who do not comply
The draft policy contains some initial information on what is proposed for employees who do not comply with the direction.
Where an employee chooses not to comply with a requirement to be vaccinated, alternative arrangements will be implemented and employees will be instructed to take leave immediately. Employees may access accrued recreation leave, extended leave, flex leave if eligible and leave without pay or a combination of these types of leave.
Employees will not be able to access sick leave or COVID Special Leave.
These employees will be required to remain on leave until they are contacted by DCJ with further instruction.
It may be determined that the employee has refused to comply with a reasonable direction of DCJ. Failure to comply with this reasonable direction may be viewed as a breach of the Code of Ethical Conduct and may result in Misconduct action being taken in accordance with Section 69 of the Government Sector Employment Act 2013 and the Government Sector Employment (General) Rules 2014 (GSE Rules) Part 8. Such action may ultimately lead to termination of employment.
The PSA does not consider the failure to comply with the direction as valid grounds for immediate misconduct, and are seeking commitments that employees in such a position will be permitted to use their leave until it exhausts if they wish, before any such action is proposed, or that the Employer consider LWOP if the employee so wishes after this. This may allow members who need a bit more time to comply with the direction for a number of reasons the ability to do so and not be threatened with immediate disciplinary action. The Department would also have to explore redeployment options, although this will depend on the role the individual holds and the availability of suitable roles which have a lower level of risk.
These issues will be further explored with DCJ representatives next week.
Additional Special Leave for workers required to repeatedly isolate
The PSA wrote to Public Sector Industrial Relations (PSIR) on 24 August seeking confirmation that employees who exhaust their 20 days of Special Leave will be entitled to additional Special Leave. PSIR confirmed that agency heads have been granted discretion to grant additional Special Leave for an employee that has exhausted their original 20 days as contained in Circular 2021-14 on a case by case basis.
The PSA will be involved in further consultation around the draft policy, and will be providing feedback in writing. A further meeting with DCJ representatives is planned for Wednesday 6 October, and we will update members further following this meeting.