The Occupational Health and Safety Amendment (COVID-19 Vaccination Information) Regulations 2022 (Vaccination Regulations) commenced operation on 12 July 2022.
See the Vaccination Regulations here.
What do the Vaccination Regulations permit?
The Vaccination Regulations amend the Occupational Health and Safety Regulations 2017 (OHS Regulations) to provide for the circumstances where an employer may:
● hold, and
● use COVID-19
vaccination information from “specified persons” for the purpose of performing a duty relating to health and safety at a workplace imposed by the OHS Act and the OHS Regulations.
Under the Vaccination Regulations a specified person, in relation to an employer, means:
(a) an employee; or
(b) an independent contractor; or
(c) an employee of an independent contractor; or
(d) a volunteer or a student on placement permitted by the employer to attend a workplace under the management or control of the employer.
What is vaccination information?
Vaccination information is information about whether a specified person—
(a) has received any dose of a vaccination against COVID-19, and if so, the date on which the person received the dose or if the person has received more than one dose, every date on which the person received those doses; or
(b) is unable to receive a dose, or further dose, of a vaccination against COVID-19 due to—
(i) a medical contraindication; or
(ii) an acute medical illness; or
(iii) the person being under 5 years of age.
What is the purpose of collecting, recording, holding the vaccination information?
An employer is authorised to collect, record, hold and use COVID-19 vaccination information from a specified person who attends or will be attending a workplace under the employer’s management or control to do the following—
(a) to determine reasonably practicable measures to control the risks to health and safety associated with COVID-19 at that workplace;
(b) to implement any reasonably practicable control measure to control the risks to health and safety associated with COVID-19 at that workplace.
Consultation obligations under the OHS Act apply.
For guidance on the scope of those existing obligations, please click here.
The Vaccination Regulations are temporary
The Vaccination Regulations are a short term measure only. They will expire automatically on their 12 month anniversary – i.e. 12 July 2023. The Regulations set out an employer’s obligations to destroy those records (within 30 days of 12 July 2023) unless:
A law of Victoria or the Commonwealth or of any other State or Territory;
(a) requires the information to be destroyed on a day that is earlier than the specified destruction date; or
(b) permits or requires the information to be retained on or after the specified destruction date.
Paragraph (b) is interesting because there are arguments that the duty of care to undertake a risk assessment and put in place commensurate risk controls, as required by the OHS Act itself, is a law that does just that – but that is an issue for another day.
What do you need to do?
- Review your current Covid management policy to determine if and how it deals with vaccination information and ensure that it now satisfies the requirements of the Vaccination Regulations.
- Take the opportunity to make sure your Covid management policy satisfies other aspects of current WorkSafe requirements generally.
In relation to the risk currently posed by Covid (in all its new strains) the daily public announcements by Governments on Covid statistics have ceased nationwide, and we are in a “living with Covid” mode. However, beneath that “calm” surface Covid is still a serious threat. Already in 6 months this year there have been more Covid deaths than in 2020 and 2021 combined. Read this article for more.
- At the expiration of the Regulations if you have vaccination policies in place as part of your response to WHS/OHS requirements, the retention of information might be an important aspect. If you have any doubt about the impact of destroying that information, seek legal advice well before the expiration date.
The state of:
- Covid infections and deaths,
- the variations/mutations of the virus,
- Victorian Health Department and WorkSafe responses,
- national mandates or recommendations,
- SafeWork Australia guidance for WHS jurisdictions, and
- what might be considered a “reasonably practicable” risk control for an employer/PCBU,
could be very different in 12 months. Government Regulations and Guidance do not always keep pace,
Even over the 12 month period the Vaccination Regulations specifically state that Pandemic Orders (made by the Victorian State Government) override the Regulations to the extent that they may be inconsistent.
- Make sure you have a process in place for monitoring and staying on top of these issues.
WorkSafe’s Covid Radar generally
WorkSafe has already issued nine charges, under the OHS Act (with an aggregate potential maximum fine of almost $13.5 million), against St Basils Aged Care following 45 Covid deaths and a large number of infections at its home (click here). While the number of deaths at St Basils is shockingly high, the breakdown of the charges laid by WorkSafe indicate the wide range of “simple” “basic” OHS issues on WorkSafe’s radar. These include:
- Requiring workers to wear personal protective equipment (PPE)
- Training workers how to safely don and doff PPE
- Verify that staff were competent in using PPE
- Tell staff when PPE should be used
- Supervise the use of PPE.
WorkSafe has advised that further Covid cases are under investigation.
For further information about these new regulations, please contact Graham Dent on (03) 8621 4500. Graham has more than 35 years’ experience providing OHS and environmental law advice to a variety of industries. He also manages Australian’s largest online Work Health and Safety forum.