Vaccination mandates end for most workplaces in Victoria

Following the Victorian Government’s announcement that it would lift vaccination mandates other than for workers who interact with vulnerable persons, the Pandemic (Workplace) Order 2022 (No. 9) (Order) has now been made.

Mandates ended for most workplaces

As a result of the Order, from 11.59pm on Friday, 24 June 2022 the following workers are no longer required to be vaccinated in order to work outside of their ordinary place of residence:

*Although ‘specialist education workers’ are still required to be vaccinated, see Steven Troeth’s article here.

The only exception to the above is if a worker directly provides a disability service to a person with a disability, or if they supervise or manage another person who directly provides a disability service to a person with a disability.

However, in line with other jurisdictions around Australia, vaccination policies for these workers will now be the responsibility of individual workplaces.

Employers of workers and operators of specified workers should continue to refer to the full terms of the relevant Orders to ensure they comply with their obligations.

Fully vaccinated (boosted) requirement

The workers still required to be fully vaccinated (boosted) (including receiving one dose of a one dose COVID-19 vaccine or two doses of a two dose COVID-19 vaccine, and a booster dose) under the Order are specified workers, which include:

• custodial workers;
• disability workers; and
• emergency service workers,

and facility workers, which include:

• healthcare workers;
• residential aged care facility workers; and
• specialist education workers.

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

Employer obligations

Employers of specified workers must not permit those workers to work outside their ordinary place of residence if the workers are not fully vaccinated (boosted). For specified workers who are under 18 years of age, the requirement is that those workers are only fully vaccinated.

Employers of facility workers must not permit those workers to enter or remain on the premises of a relevant facility if the workers are not fully vaccinated (boosted). As with specified workers, this requirement drops to being fully vaccinated for facility workers who are under 18 years of age.

Amongst other things, the Order continues to require employers of specified workers and facility workers to:

• collect, record and hold certain vaccination information of workers; and
• notify current and new workers that the employer is obliged to collect, record and hold vaccination information about the worker and to not permit the worker who is not fully vaccinated (for workers under 18 years of age) or not fully vaccinated (boosted) (for workers aged 18 years or over) from working outside the worker’s ordinary place of residence, or at a facility, as applicable.

The Order sets out exceptions where an employer is not required to comply. Otherwise, failure to comply with the Order may result in penalties.

Employers must take reasonable steps to ensure that all workers comply with face covering requirements that may apply under any Public Safety Order and that they respond appropriately if there is a symptomatic person or a confirmed case in the work premises.

This Order also specifies additional obligations on certain categories of hospitals.

Employing or reemploying unvaccinated workers

The dropping of vaccination mandates in certain workplaces will likely create issues that must be handled carefully.

Organisations that are no longer subject to mandatory vaccination orders may face difficult decisions in relation to hiring unvaccinated workers in order to meet staffing demands. Some organisations may look to re-employ those employees whose employment they have recently terminated, while others may be considering allowing unvaccinated workers back onsite following an extended period of leave or working from home arrangements. There may be existing ‘show cause’ processes underway that will need to be reconsidered in light of the fact that the Order no longer requires vaccination for onsite work.

These decisions may be particularly difficult if employers do not have a COVID-19 vaccination policy in place, or if that policy has not been updated carefully following the introduction of the Order.

If you require assistance or further guidance in complying with the Order or understanding how the Order applies to your business, please reach out to our Employment Advisory Team.

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

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Authored by:

Deivina Peethamparam, Partner
Diana Diaz, Special Counsel
Grant Klemm, Lawyer