The Acting Chief Health Officer has issued long awaited directions making COVID-19 vaccinations mandatory for authorised workers in Victoria (the Directions).
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 list of workers captured by the Directions are as follows:
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.
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:
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.
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 is a specific contraindication to the administration of a COVID-19 vaccine that is outlined in the Directions. It includes:
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 Directions also list specific reactions to named COVID-19 vaccines that will also amount to a medical contraindication.
The Directions also include a list of exceptional circumstances involving:
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.
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.
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.
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:
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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Siobhan Mulcahy, Partner
Steven Troeth, Partner
Brett Feltham, Partner
George Haros, Partner
Deivina Peethamparam, Partner
Diana Diaz, Special Counsel