The Chief Health Officer has issued amendments to the COVID-19 Mandatory Vaccination (Workers) Directions (No. 6) (Workers Directions) and COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No.11) (Specified Facilities Directions) as well as introduced the COVID-19 Mandatory (General Workers) Directions (General Workers Direction) (collectively, Directions) in response to reopening Victoria at the 80% vaccination rate and clarifying requirements for medical exemptions.
The General Workers Directions capture any person who ‘does work,’ but does not include:
Employers should be mindful of the General Worker Directions and check closely to see if their workers are covered.
As indicated in Victoria’s Roadmap, the Directions now reflect that where it is reasonably practicable for a worker to work at their ordinary place of residence, an employer or operator must not permit that worker to work outside their ordinary place of residence (including from an office or other business premises) unless that employer or operator collects, records and holds vaccination information that provides:
This requirement does not apply to a worker if it is not reasonably practicable for the worker to work at their ordinary place of residence. Essentially, workers who cannot reasonably work from home can attend the workplace if they are unvaccinated unless they are captured by the more specific Specified Facilities Directions or Workers Directions which remain in force in high risk sectors such as residential aged care, education, healthcare, construction and in respect of authorised workers.
A worker will be an ‘excepted person’ if they have obtained an acceptable certification from a medical practitioner that they are unable to receive a dose, or a further dose, of a COVID-19 vaccination due to:
As outlined in a prior update, 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.
The Directions also list specific reactions to named COVID-19 vaccines that will also amount to a medical contraindication.
Up to 6pm on 12 November 2021 an acceptable certification of a medical exemption is:
A medical certificate or letter that has already been provided by a worker, that is not a completed AIR medical exemption form, can continue to be used up to 12 November 2021.
After 6pm on 12 November 2021, only an AIR medical exemption form will be an acceptable certification.
Density quotas for business premises have been introduced in the General Workers Directions.
An employer of general workers must not permit the number of workers in an indoor or outdoor space to exceed one worker per two square metres. This does not apply to open premises as set out in the Open Premises Direction or specified facilities as set out in the Specified Facilities Directions.
The introduction of the General Workers Directions will mean that all employers, not just those that were previously captured by the Specified Facilities Directions and/or the Workers Directions, will now need to consider whether to request and collect vaccination information from staff.
In addition, if a worker has provided a medical exemption from their medical practitioner other than an AIR medical exemption form – such as a medical certificate or letter – an employer or operator should notify the worker that they will need to return to their medical practitioner and obtain an AIR medical exemption form by 6pm on 12 November 2021 and provide this to their employer or operator. A failure to do so means that the worker will not have a valid medical exemption after that date.
An acceptable certification will be effective until the earlier of the date specified by the medical practitioner or the date six months from the date the certification is given.
Employers of workers and operators of specified facilities should continue to refer to the full terms of the relevant Directions to ensure they comply with their obligations.
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Siobhan Mulcahy, Partner
Diana Diaz, Special Counsel
Nakita Rose, Lawyer