In the latest vaccination mandate, the Victorian Government has announced that a large group of ‘authorised workers’ will be required to be fully vaccinated against COVID-19 by 26 November 2021. Authorised workers must have had their first dose of a COVID-19 vaccine by 15 October 2021, in order to attend a work premises.
This means that from 15 October 2021, employers in specified industries will only be able to offer onsite work to workers who can demonstrate that they have been partially or fully vaccinated, or who are covered by an exemption.
The Chief Health Officer has not yet released health directions under the Public Health and Wellbeing Act 2008 (Vic) which set out the vaccination requirements covering authorised workers. However, we expect that exemptions will include medical exemptions for people in specific circumstances (with relevant medical evidence) and possibly an exemption for people who have made an appointment but have not yet received the vaccine.
Once the health directions are released they will clarify who is exempt from this mandate.
Who is an authorised worker?
The current list of authorised workers, and authorised providers (i.e. employers) is published by the Victorian State Government here. It covers workers in the hospitality and retail industries, community facilities, public administration, and more.
While the list of authorised workers also includes those in healthcare, education, aged care, construction, and freight, the deadlines of the new health directions will not apply to those workers, who are already covered by separate vaccination mandates. This means that workers in these industries will still need to comply with the vaccination deadlines previously provided to them, unless these are otherwise updated.
How can employers prepare?
Employers can prepare for the implementation of the upcoming health directions by establishing a workplace COVID-19 Vaccination Policy, and by consulting with workers about the Victorian Government mandate.
Employers should communicate:
- The relevant deadlines in relation to receiving a COVID-19 vaccination;
- How workers can communicate with the employer about vaccination records or exemptions;
- The need for exempt workers to provide medical evidence; and
- How information about vaccination status will be handled.
Employers should prepare to collect and record the vaccination status of workers in accordance with their privacy obligations.
What if workers do not want to get vaccinated?
Compliance with health directions is mandatory under the Public Health and Wellbeing Act 2008 (Vic), and failure to do so is an offence. This means that employers will have to take reasonable steps to ensure that authorised workers who have not been vaccinated, and who do not have a valid exemption, do not perform work onsite after 15 October 2021. Such workers may need to take an absence from work without pay, or use accrued leave entitlements. Employers might also consider whether any alternative working arrangements can be made, subject to operational requirements.
The Fair Work Commission has recently confirmed that the requirement to receive a flu vaccination can constitute a lawful and reasonable direction, where the vaccination is an inherent requirement of the job. It is highly likely that the same argument will apply in the context of the COVID-19 vaccination. Therefore, where a worker chooses not to comply with an employer’s mandatory vaccination policy, and does not have a valid exemption, the employer may also consider disciplinary action, up to and including dismissal.
Article re-blogged. Original on Russel Kennedy Lawyers.