Incentivising the COVID-19 vaccination – what are the risks for employers?

Employer incentive schemes for staff obtaining the COVID-19 vaccination are on the rise in workplaces across Australia and elsewhere.¹  By offering  incentives to vaccinate, including one-off bonuses, gift cards, or additional paid leave, employers are seeking to contribute to public health efforts and protect the well-being of their employees, which in turn, of course, will protect the health of their businesses.

The various COVID-19 vaccinations are not without risk and it is possible an employee will have an adverse reaction to receiving “the jab”, though such reactions are extremely rare.  If the reaction is significant, and is suffered in the context of an employer-sponsored incentive scheme, the prospect of a workers compensation claim may arise.

In this article we examine the possible application of the Victorian WorkCover scheme to such a reaction.

What is the test?

Under the Victorian Scheme, compensation is payable in circumstances where a worker suffers an injury arising out of or in the course of any employment.²

Whether an adverse reaction to the vaccine amounts to ‘an injury’ under the legislation requires consideration as to the severity of the reaction. A worker will need to establish that he or she has suffered an actual injury or illness as a consequence of the adverse reaction to the vaccine.

Significant adverse reactions may include a blood clot, anaphylactic allergic reaction, seizure or stroke. Generally speaking, normal side effects or mild symptoms of the vaccine such as a fever, dizziness, nausea, redness around the injection site or fatigue will not be compensable.³

If injury is established, next is the question of whether the vaccine arose out of or in the course of employment.  The vaccine might be considered to have satisfied this test where an employer mandates vaccination as a condition of employment (for example, frontline health workers) and where the employer:

• recommends or organises the vaccination onsite or at another location; or
• subsidises the vaccine.

For employees that fall outside these categories, the vaccination against COVID-19 might be found to arise out of or during the course of employment where it is ‘allowed, encouraged or reasonably incidental to employment’.⁴ 

It follows that employers who encourage their employees to get vaccinated through incentive or reward may increase their risk of workplace injury claims. Each claim will, of course, be considered on its individual merits and it is well documented that significant reactions to COVID-19 vaccinations are extremely rare.

Can employers implement any safeguards when incentivising vaccinations?

The strongest safeguard for employers is clear communication and appropriate documentation.  In addition to covering off on the voluntary nature of the vaccination, employers must take great care not to offer health advice to employees, and to leave such issues up to those with the relevant expertise.

In fact, the Therapeutic Goods Administration (TGA) under the Commonwealth Department of Health has provided guidance for parties communicating about COVID-19.⁵  Any communication must be consistent with current Commonwealth health messaging and there cannot be any reference to the trade name, sponsor name or any other information that would identify the particular vaccine.  There cannot be any statement comparing vaccines nor any statements to the effect that COVID-19 vaccines cannot cause harm or have no side effects.

The TGA website states that cash or other rewards can be offered to people who have been fully vaccinated, subject to the following conditions:

• the offer can only be made to people who have been fully vaccinated;
• the offer must contain a statement to the effect that a vaccination must be undertaken on the advice of a health practitioner;
• rewards must not include alcohol, tobacco or medicines (other than listed medicines);
• the offer must only refer to COVID-19 vaccines generally (i.e. not be trade name or other identifying factor);
• the offer must be made to all eligible people who have been vaccinated – the offer cannot be made only to those people vaccinated from the date of the offer – it must also apply retrospectively.

On top of ensuring all communication complies with these requirements, it is also recommended that employers make it abundantly clear to their employees that:

• their obtaining of the vaccination is completely voluntary and they maintain the right to choose whether to receive a vaccination or not;
• the vaccination is not mandated by the employer or incidental to the terms of their employment; and
• any employer incentive associated with obtaining the vaccination is merely a benefit of vaccination and should not in any way be considered a subsidy.

For employees who wish to be vaccinated, the employer should also:

• recommend the vaccination be undertaken by employees outside of normal working hours;
• recommend the vaccination be arranged by the employee and administered at a site of their choosing; and
• as above, ensure any communication states that the vaccination must be undertaken on the advice of a health practitioner.

Employers can ask employees taking advantage of an incentive scheme to sign an appropriately worded acknowledgment document that raises the various issues listed above.  Such an acknowledgment should be tailored to the nature of the incentive scheme.

Finally, if written proof of both doses of the vaccine is going to be required in order for the employee to receive the incentive, employers should bear in mind that they have limited access to an employee’s formal vaccination history. Employees could instead be required to produce the vaccination card issued by their vaccination provider.

If you have any queries about vaccination incentive schemes or policies, please contact David Guthrie, Karli Evans or Renee Karakinos in our workplace relations team.

This article was written by David Guthrie, Partner, Eugenia Xanthos, Senior Associate and Isabelle Turudia, Law Graduate . 

¹ For example, in the USA – https://www.vaccines.gov/incentives.html

² Section 39(1) Workplace Injury Rehabilitation and Compensation Act 2013

³ https://www.worksafe.vic.gov.au/information-injured-workers-about-your-claim-and-covid-19

⁴ Above, note 3

⁵ https://www.tga.gov.au/communicating-about-covid-19-vaccines