Can a doctor refuse to be vaccinated?

15 February 2021 | Sonya Black, LLB (Hons), B.Com, Special Counsel – Employment Law, Avant Law, QLD

Matilda is an employed GP working in private practice. She has a history of severe allergies and an anaphylactic reaction to polyethylene glycol (PEG), which is from a group of known allergens commonly found in medicines. It can also be found in household goods and cosmetics. Matilda is reluctant to be vaccinated with the Pfizer-BioNTech COVID-19 vaccine because it contains PEG.

In addition, Matilda is a practising Roman Catholic. She is reluctant to be vaccinated with the AstraZeneca vaccine because she understands foetal cell lines were used to manufacture the vaccine.

Finally, Matilda is pregnant.

Can the practice require Matilda to have the COVID-19 vaccine?

The practice cannot require Matilda to have the COVID-19 vaccine, but there may be consequences for Matilda’s employment if she does not have the vaccine.

There is currently no legislation requiring the mandatory vaccination of medical practitioners and practice staff in the private sector.

The Australian Health Protection Principal Committee (AHPPC) recently stated that it would not mandate COVID-19 vaccination in the aged care sector. The AHPPC has not issued a statement about mandatory vaccination in the health care sector at this stage. It has also made it clear that its views may change as the COVID-19 situation changes.

An employer may, however, argue that the vaccination of healthcare workers and practice staff against COVID-19 is necessary to meet work health and safety obligations and it constitutes a lawful and reasonable direction. In some cases, an employee’s contract may state that vaccination is a compulsory employment requirement.

Matilda refuses the Pfizer-BioNTech COVID-19 vaccine on medical grounds

Matilda may not wish to receive the Pfizer-BioNTech COVID-19 vaccine given her history of anaphylactic reaction to PEG.

As a first step, Matilda should provide the practice with a medical certificate from her treating practitioner explaining her medical condition and the reason she cannot have the Pfizer-BioNTech COVID-19 vaccine.

Under discrimination laws, the practice cannot treat Matilda less favourably because of her medical condition (for example, by dismissing her).

Under work health and safety laws and public health laws, the practice must ensure that Matilda and other persons attending the practice are safe and that the risk of them suffering harm is minimised (for example, they do not transmit or contract COVID-19).

It can be difficult to balance these obligations.

The practice will need to conduct a risk assessment to determine if it is safe for Matilda to continue working without the vaccine. The practice should consult with Matilda as part of that risk assessment.

The practice may determine that it is not safe for Matilda to work directly with patients, but there may be other work that Matilda can do (for example, telehealth from home). If there is no alternate work available, Matilda may not be able to work. The practice should seek specific advice if it cannot reach an agreement with Matilda about her working arrangements.

Matilda refuses Astra-Zeneca vaccine on religious grounds

As a practising Roman Catholic, Matilda is concerned about the use of foetal cell lines in the manufacture of the Astra Zeneca vaccine. She objects to receiving the Astra Zeneca vaccine due to her religious beliefs.

It is worth noting that the scientists responsible for manufacturing the AstraZeneca vaccine have explained that the vaccine that will be delivered will have not remnants of those cells in the final product.

In most states and territories, it is unlawful to treat a person less favourably due to their religious belief or religious activity.

Matilda should provide some evidence to satisfy the practice that vaccination is against her religious beliefs. It is likely that religious organisations will publish information about their views on the COVID-19 vaccine and whether the vaccine is or is not acceptable for followers.

In this regard, the Catholic Church published a note on 21 December 2020 which said that, in certain circumstances, “it is morally acceptable to receive COVID-19 vaccines that have used cell lines from aborted foetuses in their research and production process.”

The practice will need to undertake a risk assessment process if Matilda refuses the vaccine on religious grounds.

Matilda refuses both vaccines because she is pregnant

Questions about the impact of the vaccines on pregnant and breastfeeding women remain.

The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) has stated that, although the available data does not indicate any safety concerns or harm during pregnancy, there is insufficient evidence to recommend routine use of COVID-19 vaccines during pregnancy.

However, RANZCOG does state that, if a pregnant woman meets the definition of being particularly vulnerable, then she should discuss the option of COVID-19 vaccination with her obstetrician or midwife.

On the basis of this recommendation, Matilda may wish to refuse to receive any of the COVID-19 vaccines. The practice may ask Matilda to provide a medical certificate from her treating obstetrician confirming her pregnancy and the risks associated with vaccination.

The practice will need to undertake a risk assessment process if Matilda refuses the vaccine on pregnancy grounds.

What would be the situation if Matilda was working in a private hospital?

If Matilda is accredited to work at a private hospital, she must comply with the by-laws of the hospital. Most hospital by-laws require staff to be vaccinated.

Would the situation be different if Matilda worked in a public hospital?

Each state and territory public health system has a policy that explains the mandatory vaccination requirements.

These policies (listed below) explain the possible employment consequences for medical practitioners who do not or cannot have the relevant vaccinations.

It is possible that the state and territory health departments will include COVID-19 vaccination in the list of mandatory vaccinations for some roles.