COVID-19 | Mandatory vaccination in the healthcare sector in Victoria

5 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 updated directions making mandatory COVID-19 vaccinations a requirement for staff to work in healthcare facilities in Victoria (the Directions).

Who do the Directions apply to?

The Directions apply to ‘healthcare operators’, being those who own, control or operate a healthcare facility, whether public, private or denominational.

A ‘healthcare facility’ means each of the following facilities:

  • Hospitals, including outpatient settings and in reach services
  • Ambulance and patient transport services
  • Community health centres and services, including mental health, child and maternity, and drug and alcohol counselling services
  • General practices
  • COVID-19 related healthcare sites, including testing sites, vaccination centres and hotel quarantine premises
  • Dental surgeries and practices
  • Day procedure centres
  • Health clinics, including medical specialist and allied health professional operated clinics
  • Pharmacies
  • Diagnostic and medical imaging centres
  • Mobile health services
  • Blood donation services
  • Educational settings where healthcare students undertake placement, registration or internships
  • Health services within government agencies, including the Victorian Department of Justice and Community Services – Victorian Institute of Forensic Medicine
  • Any retail and other business operating within a healthcare setting, including cafes, newsagents and florists

The Directions also apply to ‘healthcare workers’, who are employed (including self-employed) or engaged as a contractor by a healthcare operator to perform at a healthcare facility in any of the following:

  • Healthcare services including:
    • Medical practitioners, dental professionals, nurses and midwives
    • Allied health professionals (including those that work within a discipline classified by the Victorian
    • Department of Health as allied health, or are registered with the Australian Health Practitioner Regulation Agency
    • Personal care attendants
    • Phlebotomists and pathology workers
    • Coroners
    • Lifestyle and social therapists
    • Formal language and interpretation services
    • Students and volunteers

  • Administrative or ancillary roles, including:
    • An administrative, clerical and managerial worker, and each of their assistants and delegates
    • Food preparation, cleaning and laundry services
    • Patient service assistants and porters
    • Operating theatre technicians
    • Security, maintenance and repair and information technology, gardening and landscaping

  • Ambulance and patient transport services
  • Work at a retail business operating within a healthcare facility, including cafes, restaurants, newsagents and florists

Employer obligations

Healthcare operators must now inform each worker who is, or may be, scheduled to work at the healthcare facility on or after 15 October 2021 that they must collect, record and hold the following vaccination information about the worker’s vaccination status as one of the following:

  1. fully vaccinated – the person has received two doses of a COVID-19 vaccine; or
  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 15 December 2021; or
  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 29 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.

Workers are not required to provide healthcare operators with any of the information that the Directions require those operators to request. However, healthcare workers who do not provide the required information by the specified dates must be treated as if they are unvaccinated and will not be permitted to enter, or remain on your premises for the purpose of working. This may also have consequences for their ongoing employment if they are employees.

Preventing access to premises

Healthcare operators must take all reasonable steps to ensure that, on or after 15 October 2021, a healthcare worker (other than an excepted person – see below) who is unvaccinated does not enter, or remain on, the healthcare facility premises for the purposes of working. However, an unvaccinated worker can attend for work between 15 October and 29 October 2021 if they have a booking to receive a first dose by 29 October 2021.

Excepted persons

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

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.

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

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

Healthcare operators 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.

Healthcare operators 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.

Steps that healthcare operators should take

We recommend that healthcare operators take the following steps as soon as practicable to ensure that you are complying with the Directions, to keep your workers fully informed of what they are being requested to do and to appropriately manage the personal information that will be collected from your employees:

  • 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 oblige the healthcare operator to take all reasonable steps to ensure that, on or after 15 October 2021, a worker who is unvaccinated does not enter, or remain on, your premises for the purposes of working (unless they have a booking for a first dose by 29 October 2021);
  • 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;
  • 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;
  • consider publishing a series of Frequently Asked Questions to assist in managing the expected bombardment of questions you will receive from your workers; and
  • 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.

Healthcare operators 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 Directions (No 5)

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:

George Haros, 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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