COVID-19 | Mandatory vaccination for Victorian authorised workers

8 October 2021
Brett Feltham, Partner, Sydney George Haros, Partner, Melbourne Siobhan Mulcahy, Partner, Melbourne Deivina Peethamparam, Partner, Melbourne Steven Troeth, Partner, Melbourne Diana Diaz, Special Counsel, Melbourne

The Acting Chief Health Officer has issued long awaited directions making COVID-19 vaccinations mandatory for authorised workers in Victoria (the Directions).

Who do the Directions apply to?

The Directions apply to the ’employers’ of ‘workers’ in Victoria who are authorised to leave home for work under the Authorised Worker list. Specifically, it applies to workers who are, or may be, scheduled to work outside the worker’s ordinary place of residence after 15 October 2021.

Importantly, an ’employer’ for the purposes of the Direction is defined widely as:

  • the person who employs or engages the worker; or
  • if the worker is self-employed – the worker.

The list of workers captured by the Directions are as follows:

  • accommodation worker
  • agricultural and forestry worker
  • airport worker
  • ancillary, support and welfare worker
  • Authorised Officer
  • care worker
  • community worker
  • creative arts worker
  • custodial worker
  • emergency service worker
  • entertainment and function worker
  • funeral worker
  • higher education worker
  • justice service centre worker
  • manufacturing worker
  • marriage celebrant
  • meat and seafood processing worker
  • media and film production worker
  • mining worker
  • physical recreation worker
  • port or freight worker
  • production and distribution worker
  • professional sports, high-performance sports or racing person
  • professional services worker
  • public sector employee
  • real estate worker
  • religious worker
  • repair and maintenance worker
  • retail worker
  • science and technology worker
  • social and community service worker
  • transport worker
  • utility and urban worker
  • veterinary and pet/animal care worker

The Directions go on to provide detailed definitions for each of the types of workers covered by the Directions, so employers are strongly encouraged to consider the Directions in detail to understand which of its workers will be required to be vaccinated to perform work outside of their homes.

Employer obligations

Employers who employ or engage workers in the above list must now inform each worker who is, or may be, scheduled to work outside of the worker’s ordinary place of residence on or after 15 October 2021 that the employer must collect, record and hold vaccination information about the worker’s vaccination status. That status must be one of the following:

  1. fully vaccinated – the person has received two doses of a COVID-19 vaccine;
  2. partially vaccinated – the person has received one dose of COVID-19 vaccine and is not an excepted person – and whether the worker has a booking to receive a second dose by 26 November 2021;
  3. unvaccinated – the person has not received a dose of a COVID-19 vaccine and is not an excepted person – and whether the worker has a booking to receive a first dose by 22 October 2021; or
  4. an excepted person – the person has obtained certification from a medical practitioner that the person is unable to receive a dose or a further dose of a COVID-19 vaccine due to a medical contraindication.

Employers who already hold the above vaccination information about a worker captured by the Directions are not required to collect the information again under these Directions.

Employers must also inform each of those workers that the Directions require the employer, on and after 15 October 2021, not to permit a worker who is unvaccinated to work for the employer outside the worker’s ordinary place of residence unless an exception applies under the Directions (for ‘excepted persons’ – see below).

Despite this, an unvaccinated worker can attend for work between 15 October and 22 October 2021 if they have a booking to receive a first dose by 22 October 2021. There are also limited exceptions for workers who cannot be vaccinated because they are in self-quarantine, but can show that they have a booking to receive a vaccination within seven days of the end of their period of self-quarantine.

Workers are not required to provide employers with any of the information that the Directions require those employers to request. However, workers who do not provide the required information by the specified dates must be treated as if they are unvaccinated and must not be permitted to work for that employer outside of the worker’s ordinary place of residence.

For workers who cannot work from home, the effect of the Direction may have consequences for their ongoing employment if they are employees.

Excepted persons

A worker will be an excepted person if they have obtained certification from a medical practitioner that they are unable to receive a dose, or a further dose, of a COVID-19 vaccination due to:

  • a medical contraindication; or
  • an acute medical illness.

A medical contraindication is a specific contraindication to the administration of a COVID-19 vaccine that is outlined in the Directions. It includes:

  • anaphylaxis after a previous dose;
  • anaphylaxis to any component of the vaccine; or
  • the occurrence of any other serious adverse event that has been attributed to a previous does of a COVID-19 vaccine by an experienced immunisation provider or medical specialist (and not attributed to any other identifiable cause) and has been reported to the relevant authorities.

Other than where a person has been diagnosed with SARS-CoV-2, the Directions do not define an acute medical illness. However, the Directions do provide that certification for the purposes of an acute medical illness will only be effective until the earlier of:

  • the date specified by the medical practitioner; or
  • six months from the date the certification was given.

The Directions also list specific reactions to named COVID-19 vaccines that will also amount to a medical contraindication.

Other exceptions?

The Directions also include a list of exceptional circumstances involving:

  • urgent specialist clinical or medical care in emergency situations;
  • workers required to fill vacancies to provide urgent care;
  • workers required to respond to an emergency; and
  • certain kinds of urgent and essential work to protect the health and safety of workers or members of the public, or to protect assets and infrastructure.

The employer must still take all reasonable steps in those circumstances to ensure that the worker does not work outside their ordinary place of residence for any longer than is necessary to respond to that exceptional circumstance.

There is no exemption under the Directions for employees to object to vaccinations on religious grounds or because of their personal views about vaccinations.

Keeping records

Employers of the above workers must keep the necessary records to demonstrate compliance with the Directions, including records of the vaccination information that they have collected. The Directions note that vaccination information may be recorded in a variety of documents, such as a letter from a medical practitioner, a certificate of immunisation or an immunisation history statement obtained from the Australian Immunisation Register.

Employers will also be required to provide access to these records to an Authorised Officer under the Public Health and Wellbeing Act 2008 (Vic) if requested to do so to demonstrate compliance with the Directions.

Penalties for non-compliance

A person must not refuse or fail to comply with a direction given to them, or a requirement made of them, under the Direction. If they do so without a reasonable excuse for refusing or failing to comply, then they may be subject to a penalty of up to $109,000 for a corporation or $21,800 for an individual.

A person must not give information, make a statement, or produce a document which is materially false or misleading, and must not make an entry in a document required to be kept by the Directions that is false or misleading. If they do so without reasonable grounds for believing that the information, statement or document is true, then they may be subject to a penalty of up to $54,500 for a corporation or $10,900 for an individual.

Steps that employers of authorised workers should take

We recommend that employers who employ or engage the above authorised workers take the following steps as soon as practicable to ensure that they are complying with the Directions, to keep workers fully informed of what they are being requested to do, and to appropriately manage the personal information that will be collected from workers:

  1. inform your workers as soon as practicable of the information and evidence that you are required to request them to provide by 15 October 2021, and that the Directions require that employers must not permit workers who are unvaccinated to work for the employer outside the worker’s ordinary place of residence (unless they have a booking for a first dose by 22 October 2021);
  2. publish a COVID-19 Mandatory Vaccination Policy to assist you to comply with the Directions and to inform your employees of the requirements of the Directions;
  3. consider setting up a dedicated page on your intranet or staff portal in relation to mandatory vaccination on which to publish your policy and other information and resources for your employees;
  4. consider publishing a series of Frequently Asked Questions to assist in managing the expected bombardment of questions you will receive from your workers; and
  5. review your record keeping protocols and ensure that the personal information being collected from your workers is secure and accessible only by those who need to know, such as your HR staff who are managing the process of collecting and recording the information.

Employers of authorised workers should also refer to the full terms of the relevant Directions to ensure they comply with their obligations – as at the date of this update these are the COVID-19 Mandatory Vaccination (Workers) Directions.

Gadens is able to assist you with all of these steps and with any queries you may have in relation to your obligations under the Directions.

For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.

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Authored by:

Siobhan Mulcahy, Partner
Steven Troeth, Partner
Brett Feltham, Partner
George Haros, Partner
Deivina Peethamparam, Partner
Diana Diaz, Special Counsel

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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