Mandatory Vaccination Directions

The COVID-19 Mandatory Vaccination (Workers) Directions were released on Friday 8 October 2021.

In a snap-shot, the Directions require employers to:

• as soon as reasonably practicable, notify workers about the obligations imposed by the Directions, including that on or after 15 October 2021 unvaccinated workers are not permitted to work outside their ordinary place of residence unless an exception applies
• collect, record and hold vaccination information for certain workers by 15 October 2021
• take all reasonable steps from 15 October 2021 to ensure that unvaccinated workers do not work outside their ordinary place of residence unless they have received a first dose of a COVID-19 vaccine, or have a booking to receive a first dose by 22 October 2021, unless some other exception applies.

It is important to note that these Directions do not cover all ‘authorised workers’ as was anticipated following the Premier’s announcements on 1 October. Rather, some employees who are ‘authorised workers’ under the Workplace Directions are not captured by the definition of worker in the Mandatory Vaccination Directions.

It is critical, therefore, for employers to carefully review the Directions to understand which of their employees are included and will be required to be vaccinated.

An employer is not required to comply with the Directions if certain emergency situations or critical unforeseen circumstances arise and certain medical exemptions apply if a worker cannot receive a dose, or a further dose, of a vaccine.

The information to collect

The Directions state that if a worker is, or may be, scheduled to work outside the worker’s ordinary place of residence on or after 15 October, the employer of the worker must collect, record and hold vaccination information about the worker.

So, an employer must first assess whether a worker is captured by the Directions.

Then, an employer must assess whether the worker is, or may be, scheduled to work outside of the worker’s home on or after 15 October. If so, then the employer must collect, record and hold vaccination information about the worker’s vaccination status. This information must be collected before 15 October.

A worker may be fully vaccinated, partially vaccinated, unvaccinated or an excepted person. If a worker is:

• partially vaccinated, the employer must also collect information that the worker has a booking to receive their second dose by 26 November
• unvaccinated, the employer must also collect information that the worker has a booking to receive their first dose by 22 October.

Obligation to ensure unvaccinated workers do not work outside their ordinary place of residence

If an employer collects information that a worker is unvaccinated, and the worker does not have a booking to receive a vaccination by 22 October or the worker is not an excepted person with medical evidence, then the employer cannot permit the worker to work outside their ordinary place of residence.

Some things to keep in mind

There are a number of things employers will need to carefully consider when applying the Directions, including:

The definition of ‘worker’

As we have said above, the categories of ‘worker’ under the Directions are quite discrete and apply to a narrower set of workers than existing workplace directions.

For example, the definition of Authorised Workers for the purposes of the current Workplace Directions (No 51) includes ‘administrative services provided by an employer to enable its employees to work from home’ for example payroll, HR and IT services. These employees can be issued an Authorised Worker Permit to work on-site. These employees, however, may not necessarily be captured by the vaccination directions.

An employer must therefore consider each category of worker and determine whether they are captured by the Directions.

There is also a difference in the treatment of the different tiers of government. While many state government workers will be caught by the definition of ‘public sector employee’, local government workers are not expressly covered by the Directions. This means that local government entities will need to assess each category of worker separately to determine whether they employ a relevant worker not otherwise captured by previously issued Directions for the Construction, Health, Education and Aged Care industries. For example, if a local government operates a public library or community centre, any worker who works at that facility will be deemed to be a ‘community worker’ and therefore covered by the Directions.

Record keeping obligations

Employers also need to ensure they comply with their health records and privacy obligations, however the need under privacy legislation for employees to consent to the collection is removed where the information is required or authorised by the Directions. Information should be stored securely and only used and disclosed on a need to know basis.

Timeframes – is vaccination an ongoing requirement?

This version of the Directions expires on 22 October 2021, although they may be replaced with updated versions prior to that time. The expiration of the current Directions aligns with the current Declaration of State of Emergency which also expires on 22 October 2021. It seems likely that these Directions will be extended in one form or another beyond 21 October 2021.

The current Directions are clear in imposing requirements around collecting vaccination information and in stating that on or after 15 October 2021, relevant unvaccinated workers are not permitted to work outside their ordinary place of residence unless an exception applies.

The Directions are worded broadly such that they apply to the defined classes of workers who are ‘scheduled to work outside the worker’s ordinary place of residence on or after the relevant date’ being 15 October 2021. We know of reports of workers who do not wish to be vaccinated and who are proposing to take annual or long service leave, or work from home and therefore ‘wait out’ these Directions. It is not clear whether the future Directions will address whether vaccination is an ongoing requirement for these defined classes of workers if they are attending work outside their home in, for example, January 2022. Employers will need to monitor this.

Healthcare, Education, Aged Care and Construction Directions

The COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 6) (Facility Directions) were also updated last week and apply to healthcare facilities, education facilities, aged care facilities and construction sites.

The Facility Directions require operators (as distinct from employers) in these sectors to collect vaccination information from workers attending on site and take reasonable steps to prevent unvaccinated workers from attending on site.

What records is an employer required to maintain?

If workers are, or may be, scheduled to work at any of a residential aged care facility, construction site, healthcare facility or education facility, after a ‘relevant date’, the operator must collect, record and hold vaccination information about the worker. This will include vaccination booking information in circumstances where a worker is partially vaccinated or unvaccinated.

What is the relevant date?

For both residential aged care and construction sites, the ‘relevant date’ was 30 September 2021.

For healthcare facilities, this is 15 October 2021, and education facilities, it is 18 October 2021.

What is vaccination information?

While this is ordinarily a certificate of immunisation, vaccination information may be recorded in a variety of documents, such as a letter from a medical practitioner or immunisation history statement obtained from the Australian Immunisation Register.

Who is a ‘worker’? Who is an ‘operator’?

The Facility Directions extensively define who is a ‘worker’ and who is an ‘operator’.

What about partially vaccinated and unvaccinated workers?

If an operator collects information that a worker is partially vaccinated, the operator must also collect, record and hold information about whether the worker has a booking to receive their second dose by the second dose deadline. The second dose deadlines are:

• Residential aged care: 15 November 2021
• Construction sites: 13 November 2021
• Healthcare facility: 15 December 2021
• Education facility: 29 November 2021

If the operator collects information that a worker is unvaccinated, the operator must also collect, record and hold information about whether the worker has a booking to receive their first dose by the first dose deadline. The first dose deadlines are:

• Residential aged care: 1 October 2021
• Construction sites: 2 October 2021
• Healthcare facility: 29 October 2021
• Education facility: 25 October 2021

Operators must have in place robust systems to prevent unvaccinated workers attending on site. This extends beyond direct employees, so operators will be required to take further steps beyond an instruction to unvaccinated employees not to attend onsite work.

The information above is based on the Directions released in Victoria to date. This is a rapidly changing area, with the Chief Health Officer indicating that the application and implications of directions are reviewed daily. Accordingly, employers should continually assess their rights and obligations.