The new mandatory vaccination orders – what do they mean for employers?

On Friday 1 October 2021, the Victoria Government announced an intention to introduce mandatory vaccinations for Authorised Workers. Late Thursday 7 October, the Acting Chief Health Officer published the COVID-19 Mandatory Vaccination (Workers) Directions (Directions), which have the effect that certain workers working outside their usual place of residence will need to be vaccinated against COVID-19. Given the broader application of these Directions than anticipated, it is important that all employers are aware of their contents and any possible obligations they may impose.

What is the status of the Directions?

The Directions came into effect at 11:59pm on Thursday, 7 October 2021. They are made under section 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic).

We note these Directions are made pursuant to the declared state of emergency in Victoria. Both the state of emergency and the Directions are due to expire at 11:59pm on 21 October 2021. Although it is anticipated the state of emergency will be extended, and the Directions renewed in some form, we do not yet know whether the Directions will be replicated in their entirety, or how long they will be in force. Furthermore, under the current legislation the state of emergency may not be extended past 15 December 2021. There is speculation that the Government will seek to enact another legislative measure to enable it to make public health orders past this date, however it is not clear what form this will take.

Do I employ Workers as described in the Direction?

If you employ workers who are listed within the “worker-specific definitions” in the Directions, and who work (or may be permitted to work) outside their ordinary place of residence (e.g. onsite) on or after 15 October 2021, then the Directions apply to you, the employer, and those workers.

The Directions are not applicable to a worker who works exclusively from home, unless the worker is, or may be, permitted to work outside their ordinary place of residence on or after 15 October 2021.

The Directions do not mention Authorised Workers (despite the announcement on Friday 1 October 2021), but provide ‘worker-specific definitions’ under clause 9. The list of worker-specific definitions is similar but not identical to the Authorised Workers list.

We note that the “worker-specific definitions” are very broadly drafted and will (if the Directions are renewed/extended past 21 October) cover many workers returning to onsite work once restrictions ease under the National Roadmap. The Directions therefore have potentially broader coverage than the original announcement from the State Government.

What does this mean for my organisation?

If any of your workers fall within the “worker-specific definitions” under the Directions, and they may perform their roles anywhere other than at home (e.g. onsite) on or after 15 October 2021, you have obligations under the Directions. This blog will refer to these workers as relevant workers.

Your first obligation, is to notify relevant workers about your obligations under the Directions.

Your second obligation, is to collect, record and hold vaccination information for each relevant worker. This should be done securely and in accordance with any relevant privacy and data protection obligations. If a relevant worker refuses to provide vaccination information, the Directions require employers to assume they are unvaccinated.

Your third obligation is that, from 15 October 2021, you are obliged to exclude relevant workers who are unvaccinated from any workplace outside their ordinary place of residence, unless there is an exception or they have a booking to receive their first dose by 22 October 2021.

While not expressly stated in the Directions, it is implied that if the Directions are extended, then from 22 October 2021, unless an exception applies, you will be obliged to exclude relevant workers who are not partially or fully vaccinated from any workplace outside their ordinary place of residence.

What next steps are recommended to achieve compliance?

To help promote compliance, communicate your commitment to providing a safe workplace for all of your workers and clients, if applicable.

Notify your relevant workers that you are required to comply with the Directions and let them know they will not be permitted to work for you outside their home if they are not vaccinated, unless an exception applies.

As soon as possible, but by Friday 15 October 2021 collect, record and hold vaccination information for all workers who will or may work outside their ordinary place of residence (e.g. onsite) on or after 15 October 2021.

What if some workers are hesitant to get vaccinated?

If a relevant worker is hesitant to get vaccinated, encourage them to speak with their medical practitioner. Employers should not assume that everyone who is hesitant is an “anti-vaxxer” – much vaccine hesitancy can be attributed to genuine fear and mis-information about the vaccine. Encourage workers to seek medical advice. Employers may wish to consider providing workers with leave to attend medical appointments, or even facilitating access to medical advice by establishing relationships with local medical practitioners, and asking them to speak to your workers and answer questions about the vaccine.

What if a worker refuses to get vaccinated?

If a worker refuses to get vaccinated and an exception does not apply, you must ensure they do not work for you outside their usual place of residence (e.g. onsite) on or after 15 October 2021 (unless they have a booking to get vaccinated by 22 October 2021).

In light of the Directions preventing workers from working outside their ordinary place of residence, if it is an inherent requirement of their job that they work onsite some or all of the time (i.e. that they cannot work entirely from home) then employers may wish to consider termination of employment due an inability to perform the inherent requirements of their role. We do, however, recommend caution with this approach in the first instance. As discussed above, the current Directions expire on 21 October 2021. Although we expect they will be renewed or extended in some form, this has not yet been confirmed. In light of this uncertainty, a decision to terminate for an inability to perform the inherent requirements of the job that, as it currently stands, will only be an issue until 21 October 2021, may be open to challenge.

Therefore, until further clarity regarding the limit of these (or similar) Directions is obtained, where relevant workers refuse to be vaccinated, employers may instead wish to explore placing them on a period of paid or unpaid leave.

What if a worker won’t tell me if they’ve been vaccinated? Isn’t that information private?

The Directions require employers to collect, record and hold proof of vaccination information about their workers who may perform work outside their home. As vaccination information is health information, more onerous obligations apply with respect to the collection, use and storage of this information. Employers should seek advice if they are unsure about these obligations.

A worker cannot be forced to provide vaccination information, however if they refuse to do so, you (the employer) must treat the worker as if they are unvaccinated.

How do the exceptions operate?

The Directions provide a number of exceptions to protect individuals who are unable to or have not yet been able to get vaccinated. Some of the exceptions are as follows.

The self-quarantine exception allows for unvaccinated relevant workers to continue to work outside the home, if they were unable to become partially vaccinated by 22 October because they were in self-quarantine under the Diagnosed Persons and Close Contacts Directions. Workers covered by this exception must have a booking to become partially vaccinated within 7 days of leaving self-quarantine.

Acute medical illness
This exception is new to these Directions. It provides an exception to the COVID-19 vaccine mandate to a worker certified to have an acute medical illness (including being diagnosed with COVID-19) by a medical practitioner. Acute medical illness is not defined in the Directions, although we note that according to the Australian Institute of Health and Welfare, “acute” is defined as “a medical condition that comes on suddenly, and lasts for a limited time”[1]. This exception with respect to a relevant worker ends on the date specified by the worker’s medical practitioner or 6 months from the certificate date, whichever is earlier.

Medical Contraindications
In very limited instances, it is possible to obtain an exemption for the requirement to receive the COVID-19 vaccine due to specific medical contraindications, as defined by the Directions. The medical contraindications are limited and prescriptive. A relevant worker needs to provide certification from a medical practitioner (as defined by the Directions) that they are unable to receive a dose, or further dose, of a COVID vaccine due to a medical contraindication.

Given the Directions expire on 21 October 2021, can’t I just wait it out and see what happens?

Irrespective of the expiration date of the Directions, if employers have obligations under the Directions now, they should take steps to ensure they are complying. A failure to collect, store and hold the vaccination information, or allowing unvaccinated relevant workers to work outside the home after 15 October may, as it currently stands, be in breach of the Directions and expose your organisation to a penalty.

Given, however, the expiration date and related uncertainty, we recommend that employers proceed with caution with respect to the employment termination of any relevant workers who refuse to get vaccinated and consider whether a period of leave may be appropriate.

Key points for employers

  • Given the Directions may have broader application than simply Authorised Workers as originally communicated by the State Government announcement, all employers should consider whether they have workers which fall within the worker-specific definitions in the Directions and, if so, whether these workers may be required to work outside their home on or after 15 October 2021. In light of the National Roadmap and anticipated easing of restrictions, this is likely to cover many more employers than those currently considered Authorised Providers.
  • If you do engage such workers, employers should start collecting information regarding vaccination status of these workers now, as well as notifying relevant workers that they will be required to be vaccinated (or have a booking to be vaccinated by 22 October) if they wish to work outside the home on or after 15 October 2021, unless a valid exception applies.
  • Irrespective of your obligations under these, or any other directions, employers also have obligations under work health safety legalisation to do what is reasonably practicable to reduce or eliminate the risk of COVID-19 in the workplace. Employers should be consulting with their workforces now, and conducting risk assessments, to ensure they are taking necessary steps to comply with these obligations.

If employers need any assistance in navigating these Directions, please contact Melissa Scadden or Kelly Ralph on (03) 8621 4500.