What the mandatory vaccination Directions in Victoria mean for employers

Victoria’s COVID-19 Mandatory Vaccination (Workers) Directions (Directions), issued on 7 October 2021, imposes obligations on Victoria’s employers regarding vaccination of authorised workers to return to working onsite.

The Directions should be read in conjunction with other COVID-19 directions currently in force. Importantly, the Directions do not apply to those workers and employers already covered by the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 6), which impose obligations on those employed in residential aged care, construction, healthcare, and education.

The Directions list a broad range of authorised workers to whom they apply, including emergency services, retail, legal and financial services, hospitality and higher education.

Directing an Employee to Get Vaccinated

Whilst the Directions are under public health orders (and are therefore legislated), employers need to implement the Directions in a considered, systematic manner to avoid unnecessary conflict in the workplace. Generally, you can give ‘lawful and reasonable’ directions to employees, which they must follow. Therefore, you could direct an employee to vaccinate if that direction is lawful and reasonable.

To establish whether the direction is lawful and reasonable, employers should consider:

• If there is a realistic or high risk of infection for COVID-19 in the workplace?
• What is the extent of community transmission in the workplace’s location?
• Is the employee performing duties in an environment that may be prone to infection spread?
• Can you implement other measures to mitigate the risk of infection spread successfully?
• Is the direction consistent with Federal, State or Territory requirements (if any)?
• Does the employee have a valid medical reason or genuine religious grounds for refusing the vaccine?

What are the employer obligations under Directions?

From 15 October 2021, an employer must not permit a worker (as defined in the Directions) who is unvaccinated to work outside the worker’s ordinary place of residence (they must not be permitted to work onsite) unless the worker:

• is fully vaccinated (received both doses of a COVID-19 vaccine); or
• is partially vaccinated (received one dose of a COVID-19 vaccine); or
• has made a booking to receive a first dose of a COVID-19 vaccine by 22 October 2021 (the first-dose deadline); or
• holds certification from a medical practitioner certifying that an exception applies.

What information do employers need to collect, record and retain?
Under the Directions, an employer must collect, record and retain vaccination information about any worker who is required to work outside of the worker’s ordinary place of residence on or after 15 October 2021. Vaccination information is defined in the Directions and includes medical records such as a letter from a medical practitioner, a certificate of immunisation, or an immunisation history statement obtained from the Australian Immunisation Register.

What to do if employees are partially vaccinated
If the employer collects information that a worker has been partially vaccinated, the employer must also collect information about whether that worker has a booking to receive a second dose of the COVID-19 vaccine by 26 November 2021 (the second-dose deadline).

What to do if employees are not vaccinated
If the employer collects information that a worker is unvaccinated. In that case, the employer must also collect information about whether that worker has a booking to receive, by 22 October 2021, a dose of a COVID-19 vaccine.

What to do if you have no record of vaccination status?
If the employer does not hold any vaccination information about a worker, the employer must treat the worker as being unvaccinated.

As soon as practicable after 7 October 2021, employers must:

• comply with the obligation to collect, record and retain vaccination information about workers;
• inform workers of the employer’s obligation to collect, record and retain vaccination information; and
• inform workers that on and after 15 October 2021, they cannot permit an unvaccinated worker to work outside the worker’s ordinary place of residence (unless an exception applies).

Suppose an employer engages a new worker who may be required to work outside the worker’s ordinary place of residence on or after 7 October 2021. In that case, the employer must inform the new worker of the employer’s obligations regarding collecting, recording, and retaining vaccination information and preventing entry to the workplace of unvaccinated workers (unless an exception applies).

On a side note, it may be worthwhile revisiting employment contract templates to reflect this.

What are the privacy considerations with the collection of COVID-19 vaccine data?

Given the sensitive nature of the information employers will be collecting, recording and retaining; they need to be aware of their obligations relating to privacy and communication to workers to comply with these obligations.
Guidelines recently published by the Office of the Australian Information Commissioner concerning privacy obligations under the Privacy Act 1988 around COVID-19 may assist employers. In particular, the guidelines provides that:

• an employer may collect vaccination status information without consent only where the collection is required or authorised by law, such as a public health order or direction;
• only the minimum amount of personal information reasonably necessary to maintain a safe workplace should be collected, used or disclosed;
• vaccination status information should only be used or disclosed on a ‘need-to-know’ basis;
•  employers must inform employees about how this information will be handled (for example, through the implementation of an appropriate policy); and
• employers must take reasonable steps to keep employee vaccination status and related health information private and secure.

Employers should be aware that while the employee records exemption under the legislation applies to the personal information of private sector employees after the personal information has been collected, employers will still have privacy obligations under the Health Records Act 2001 (Vic).

Employer’s failure to comply can expose companies to fines in excess of $100K
A refusal or failure to comply with the Directions can expose an individual to a fine of up to $21,808.80 and a body corporate to a fine of up to $109,044.

The provision of false or misleading information can expose an individual to a fine of up to $10,904.40 and a body corporate to a fine of up to $54,522.

If you need help revising your employment contracts to reflect the recent changes or understanding your obligations under these new Directions, please get in touch with Morrows Legal.