Note (22 October 2021): The Directions referred to in the below article have since been replaced by the COVID-19 Mandatory Vaccination (Workers) Directions (No 5). These latest Directions now apply until 11.59pm, 18 November 2021, which aligns with the newly extended State of Emergency. Whilst the remainder of the information contained in the below article remains largely correct, there have been minor amendments to the Directions from time to time (particularly in relation to definitions contained in the Directions), and there are likely to be further amendments in due course. Readers are recommended to review the latest directions on the Victorian Department of Health website to ensure compliance with the latest requirements.
Following the Victorian Government’s announcement on 1 October 2021 that workers will need to be vaccinated in the coming weeks in order to continue attending work, the COVID-19 Mandatory Vaccination (Workers) Directions (Directions) were released by the Acting Chief Health Officer on 7 October 2021.
The Directions have already come into effect and will end at 11:59pm on 21 October 2021. This aligns with the date for the end of the current orders declaring a State of Emergency in Victoria (although we expect these orders to be extended beyond 21 October 2021).
The Directions are broad-reaching, significantly extending beyond the mandate for authorised workers flagged by the Government a week ago.
We summarise the key points from the Directions below.
Who do the Directions apply to?
The Directions apply to employers who employ or engage the following types of ‘workers’:
| accommodation worker | higher education worker | professional services worker |
| agricultural and forestry worker | justice service centre worker | public sector employee |
| airport worker | manufacturing worker | real estate worker |
| ancillary, support and welfare worker | marriage celebrant | religious worker |
| Authorised Officer | meat and seafood processing worker | repair and maintenance worker |
| care worker | media and film production worker | retail worker |
| community worker | mining worker | science and technology worker |
| creative arts worker | physical recreation worker | social and community service worker |
| custodial worker | port or freight worker | transport worker |
| emergency service worker | production and distribution worker | utility and urban worker |
| entertainment and function worker | professional sports, high-performance sports or racing person | veterinary and pet/animal care worker |
| funeral worker |
Each of these workers have been given specific definitions in clause 9 of the Directions. In many instances, the definitions are broader than they may seem at first glance because they extend to apply to workers who perform work ‘in connection with’ particular types of work.
What do employers need to do?
1. Collect, record and hold vaccination information
If a worker is or may be scheduled to work outside of their ordinary place of residence on or after 15 October 2021, the employer must collect, record and hold vaccination information about the worker. This means that:
- Employers must obtain information about a person’s vaccination status that has been derived from the Australian Immunisation Register. Examples of evidence of a person’s vaccine status include a letter from a medical practitioner, a certificate of immunisation or an immunisation history statement obtained from the Australian Immunisation Register.
- There are four forms of vaccination status recognised in the Directions:
- Fully vaccinated: received two doses of a COVID-19 vaccine.
- Partially vaccinated: received one dose of a COVID-19 vaccine (and not an ‘excepted person’).
- Unvaccinated: received no doses of a COVID-19 vaccine (and not an ‘excepted person’).
- Excepted person: the person holds certification from a medical practitioner that they are unable to receive a dose, or a further dose, of a COVID-19 vaccine due to:
- a medical contraindication, which is defined in clause 10(7) of the Directions; or
- an acute medical illness (including where the person has been diagnosed with COVID-19).
- If a worker is unvaccinated or partially vaccinated, the obligation to obtain information about the worker’s vaccination status extends to obtaining information that the worker is booked in to receive a dose or further dose of a vaccine.
2. Prohibit unvaccinated employees from performing work
On or after 15 October 2021, Victorian employers must not permit a worker who is unvaccinated to work outside of their ordinary place of residence. If an employer does not hold any vaccine information about the worker, they are to be treated as being unvaccinated.
However, there are two exceptions to this rule:
- an unvaccinated worker may perform work between 15 October 2021 and 22 October 2021 if they have a booking to receive the first dose of a vaccine by 22 October 2021; and
- if an unvaccinated worker has been directed to self-quarantine and, as a consequence, was unable to obtain a COVID-19 vaccine, they may perform work after 22 October 2021 provided that they have a booking to receive a vaccine within 7 days of the end of their self-quarantine period.
3. Inform workers of the requirements
An employer must, as soon as reasonably practicable after the implementation of the Directions, inform each worker that is affected by the Directions of the above two obligations. A similar obligation exists for employees engaged by the employer on or after 15 October 2021.
What are the exceptions to the Directions?
The exceptions are limited and generally relate to responding to emergency situations or critical unforeseen circumstances.
Employees may also be exempt on medical grounds, however, these grounds are tightly confined. Employees need a current certificate from an approved medical practitioner stating that they are unable to receive a dose or further does of an approved COVID-19 vaccine due to an approved medical contraindication, or an approved acute medical illness. The term ‘medical contraindication’ is defined exhaustively in clause 10(7).
Notably, Commonwealth employees or people who work in connection with court proceedings are also exempt from the mandate.
What if employees refuse to comply?
If an employee refuses to provide vaccination information to their employer and/or get vaccinated, the employer is required to treat them as if they are unvaccinated. Practically, this means that those employees will not be able to perform work outside of their ordinary place of residence on or from 15 October 2021 (unless they meet an exception outlined above).
What happens if an employer fails to comply with the Directions?
A failure to comply with the Directions, without reasonable excuse, may result in a penalty of 600 penalty units (which equates to $109,044) for a body corporate and 120 penalty units ($21,808.80) for individuals. Penalties also exist for providing false or misleading information.
Key takeaways
Given the tight timeframe for compliance, employers should swiftly prepare communications to distribute amongst their workforce, outlining what employees are required to do under the Directions.
Employers should communicate to employees that for those who have not already done so, they must provide their employer with information about their vaccination status confirming:
- how many doses of a COVID-19 vaccine they have had;
- whether they have a booking or bookings scheduled, and the date(s) of such booking(s); and
- whether the employee has a certificate from an approved medical practitioner that they are unable to receive a dose of an approved COVID-19 vaccine because of a medical contraindication or an acute medical illness.
This information should be provided as soon as possible, and in any case, no later than 15 October 2021.
Some employers are also taking measures to not only enable, but also encourage, employees to get vaccinated. For example, some employers are allowing employees to get vaccinated during work hours or to work flexibly on the day that they get vaccinated.
We expect that some employees will show reluctance – and even complete refusal – to being vaccinated. In such circumstances, this may mean that non-complying employees who are required to perform their duties at the workplace are unable to perform the inherent requirements of their roles. Employers will then be faced with a decision about how to best manage such employees’ employment: can the employee be re-deployed to another role that is not located at the worksite? Can the employee take leave without pay or access any accrued annual or long service leave? Should the employee be stood aside until such time that they are able to attend the worksite? Unfortunately, such solutions may not provide permanent solutions. It may be that the only option available in some situations is termination of an employee’s employment.
Government Directions in relation to vaccination requirements are changing frequently and employers should stay informed as to any updates or guidance in relation to these Directions. The information contained in this note is current as at 8 October 2021.
This article was prepared by Marco Fedeli, Senior Associate and Grace Holmes, Solicitor.
For more information or advice on this topic, please contact:
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Key contacts
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.