On Friday 1 October, the Victorian Premier announced new rules in relation to vaccination requirements for workers attending workplaces.
These rules are issued by the Chief Health Officer in the form of Mandatory Vaccination Directions (Directions). As at 11.00am Monday 4 October, the only such Directions on the Department of Health and Human Services (DHHS) site were in relation to residential aged care, construction, healthcare and education.
We anticipate Directions will be issued shortly to cover all other workers.
We expect the Directions will state:
- The Directions apply to all workers who cannot effectively work from home and are Authorised Workers as previously defined, i.e. every worker currently attending work.
- These workers will be required, by the end of Friday 15 October to either:
- Be fully or at least partially vaccinated by having had one dose of COVID-19 vaccine; or
- Have a medical certificate that states that due to a medical contraindication, the worker cannot have the vaccine.
- Further, these workers will be required, by the end of 26 November, to either:
- Be fully vaccinated; or
- Have the medical certificate exemption referred to above.
We expect the Directions will also state that whoever controls entry to the worksite, usually the employer, will be required to collect the necessary vaccination status information about the worker, and to take reasonable steps to ensure that a worker who has not complied with the requirements in point two above does not enter or remain on the site, except in the case of an emergency situation or critical unforeseen circumstance as strictly defined.
The definition of worker will include contractors. This will therefore include workers supplied by labour-hire providers.
Significant financial penalties apply for any non-compliance with the Directions.
Australian Privacy Principle 3 allows a person to collect health records where such collection is in accordance with a regulation pursuant to a State law. The Directions when issued will fall within this definition.
Employers therefore need to be aware that if they have employees who do not meet one of the criteria set out in point two above by the end of Friday 15 October, the employer cannot allow them onto the worksite.
If such employees cannot effectively work from home, they are not presenting for work as ready for work and therefore they can be lawfully stood aside until such time as they do present as ready for work. This means they must not enter the site and if there are no alternative duties for them to perform, they will not be entitled to be paid until such time as they do present as ready for work, i.e. they comply with one of the obligations in point two above.
An employer could agree to allow an employee to use the employee’s annual leave, long service leave or RDOs in the short term while they are trying to comply or to await further developments.
It is possible that ultimately the only option is the termination of employment on the grounds that the employee cannot perform the inherent requirements of their role if there are no reasonable alternatives. We would urge employers to seek further advice about individual circumstances before moving to that option, including to ensure that they comply with anti-discrimination, unfair dismissal and general protections laws.
We urge all employers to constantly review the DHHS site “dhhs.vic.gov.au” and “Directions issued by Victoria’s Chief Health Officer” for the anticipated Directions referred to above.
If you would like to discuss these developments further and the potential impact on your business, please contact a member of our Workplace Relations team.
For more information about the privacy considerations when collecting vaccination status and other health information about employees, labour hire workers, contractors, volunteers, candidates and other visitors to the workplace, please see our alert here.
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