Legislation, Leave, Superannuation and Public Holidays

Mandatory Vaccination under Public Health Orders in Victoria

October 8, 2021

State governments in Victoria and New South Wales are preparing to move into the next phase of the COVID-19 re-opening roadmap.

ER Strategies has received an overwhelming number of enquiries relating to government-imposed vaccination requirements for certain workers in NSW and VIC, following announcements by the respective state governments. We break down the available advice for Victoria below.

To see the corresponding article relating to New South Wales, please click here.

VIC:

Last week, the Victorian Government announced that it was mandating vaccination for all Authorised Workers and Authorised Providers. Authorised providers are businesses and organisations that can open in Restricted Areas (i.e. metropolitan Melbourne and Restricted Area LGAs in regional Victoria) when all other persons are unable to attend work due to the stay-at-home orders. All persons providing work under this provision will be subject to the mandatory vaccination requirements.

A full list of Authorised Providers and Authorised Workers can be found here.

From October 15th 2021, any workers performing work under the authorised worker provisions will be required to have received at least their first dose of a COVID-19 vaccination to continue working on site. These same workers will need to be fully vaccinated by November 26th 2021 in order to continue working.

At this point in time, it appears that this mandate will apply to all authorised workers, without any ‘carve outs’ in respect to age. This means junior staff will also need to be able to produce evidence of vaccination in order to continue working beyond October 15.

These vaccination requirements do not apply to authorised workers who continue to work from home. These new restrictions also do not override existing public health orders for industries already subject to separate public health orders relating to mandatory vaccination.

Limited exemptions are intended to apply to workers who cannot be vaccinated.

In limited exceptional circumstances, an operator could approve unvaccinated workers to continue working if it is necessary, including:

for a worker to provide for urgent specialist clinical or medical care at the work premises due to an emergency situation or a critical unforeseen circumstance; or
for a worker to fill a vacancy to provide urgent care, to maintain quality of care and/or continue essential operations at the work premises due to an emergency situation or a critical unforeseen circumstance; or 
for a worker who is required to attend the premises to respond to an emergency at the work premises; or
for a worker to sustain human or animal health, safety and wellbeing where a  vaccinated worker cannot be sourced in a timely manner; or
for a worker to make a premises safe and secure, or to perform urgent and essential work to protect assets and infrastructure where a vaccinated worker cannot be sourced in a timely manner.

The official Public Health Order regulating these changes was released on Friday 8th October 2021. A copy can be found here.

It remains unclear as to how long the provisions under this order will continue to apply, and when it may be possible for unvaccinated employees to return to work in occupations listed on the authorised worker list.

ER Strategies will monitor this and continue to update this resource.

Employee Records

Under the Victorian Public Health Order, there is a requirement outlined for employers to collect, record and hold vaccination information about the worker. Also, if the employer collects information that a worker is partially vaccinated, the employer must also collect, record and hold information about whether that worker has a booking to receive, by the second dose deadline, a dose of a COVID-19 vaccine that will cause the worker to become fully vaccinated.

As we mention below, there are implications for employers under the Privacy Act 1988 in relation to storing and recording sensitive health information. Clients of ER Strategies should ensure their record systems comply with these requirements and contact us for more information.

Summary:

We understand that this update may leave many of our clients with unanswered questions, and the information above is subject to further directions being released by the relevant State government.

It is key that unless an employer, separate to a public health order applying, has implemented a mandatory vaccination policy, that neutral language continues to be used around the employer’s stance on vaccination. Employers are not mandating vaccination under these requirements, they are merely adhering to the government directions as imposed under the Public Health Order.

Ensuring that neutral language like this is used will help protect the employer from disputes raised by employees who perceive their employer is imposing measures more restrictive than those under the health orders.

ER Strategies also strongly recommends that employers do not collect and retain copies of employee’s vaccination certificates, unless critical under a public health order. Employers, where possible, should request to sight a copy of the employee’s vaccination certificate in the first instance, and continue to utilise this method to avoid having to keep records of this information.

If a copy of an employee’s vaccination certificate is required to be kept on file, clients of ER Strategies should reach out to request a copy of our ‘employee consent’ form, to ensure the business is meeting all requirements to maintain this information as required under the Privacy Act 1988.

If an employer subject to a public health order has an employee that refuses to comply with the order, then expert advice should be sought before any action is taken to minimise issues arising. ER Strategies will be able to assist you navigate these difficult discussions and help you understand the possible options for your business.

Clients of ER Strategies can contact our team on 1300 55 66 37 in business hours (AEST) to raise any questions not addressed in this update.