COVID-19 | Mandatory vaccination in Victoria

4 November 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 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.

Who do the General Workers Directions apply to?

The General Workers Directions capture any person who ‘does work,’ but does not include:

  • any person who is a worker under the Specified Facilities Directions, Workers Directions and/or the Open Premises Directions (No. 3) (Open Premises Direction); and
  • a detailed list of exempt persons including those who are under 12 years of age and those employed in specified public service positions.

Employers should be mindful of the General Worker Directions and check closely to see if their workers are covered.

What do the new changes entail?

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:

  • the person is fully vaccinated; or
  • the person is an excepted person.

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.

What are the changes to who is an ‘excepted person’?

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:

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

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:

  • 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 dose 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.

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

What is an acceptable certification?

Up to 6pm on 12 November 2021 an acceptable certification of a medical exemption is:

  • a certificate issued by the worker’s medical practitioner that states that the worker is unable to receive a dose, or a further dose, of a COVID-19 vaccine for one or more of the medical exemption reasons; or
  • the Australian Immunisation Register (AIR) medical exemption form (IM011) that is completed and signed by the worker’s medical practitioner and states that the worker is unable to receive a dose, or a further dose, of a COVID-19 vaccine for one or more the medical exemption reasons.

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 in the General Workers Directions

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.

What do employers and operators need to do?

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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Authored by:

Siobhan Mulcahy, Partner
Diana Diaz, Special Counsel
Nakita Rose, Lawyer

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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