What are the new directions for mandatory Covid-19 vaccinations for Victorian workers? October 15, 2021

The Victorian Government has imposed new workplace rules for Covid-19 vaccines 

For some time now, employers have been considering introducing mandatory covid-19 vaccines for Victorian workers. We have previously outlined the possible obligations and consequences around mandatory vaccination, particularly that such a direction must be lawful and reasonable and take into account the employer’s obligations under the various legal instruments governing their relationship with their employees.

For many employers, the rules of the game have changed. The Victorian Chief Health Officer recently mandated vaccinations for authorised onsite workers.

These directions expire at 11:59pm on 21 October 2021.

The new directions for mandatory Covid-19 vaccinations

Employers of authorised workers, pursuant to the current directions of the Victorian Chief Health Officer must ensure that, after 15 October 2021, unvaccinated workers do not enter or remain on their premises. If a worker is not fully vaccinated, they may attend the workplace onsite provided they have a booking to receive a first dose of a COVID-19 vaccine by 22 October 2021. 

Employers of authorised workers are required to record vaccination information relating to each authorised worker who intends to work onsite. This includes:

• Their vaccination status; 
• Whether they are partially or unvaccinated; and
• Whether the worker has a booking to receive their second or first dose of the vaccine

An authorised worker may seek an exemption and will have to seek advice from a medical practitioner that the authorised worker is not able to be given a vaccine against COVID-19.

The future of mandatory Covid-19 vaccines

Although the new directions will expire on 21 October 2021, the Chief Health Officer may seek to extend the mandate and implement similar directions in respect of the COVID-19 vaccine.  

What does this mean for employers considering mandatory COVID-19 vaccination of employees and contractors who are on-site in the workplace? Previously, an employer could only require an employee to be vaccinated if:

• There was a specific law in place; or
• The employer provided a lawful and reasonable direction to do so

The current public health directions constitute a specific law, so it is more likely that an employer can reasonably require vaccination for workers of the kind listed in the directions. It means that the employer may have a valid reason for dismissal if an employee refuses a COVID-19 vaccination under the Chief Health Officer’s directions which are currently in force and are subject to change.  

In a September 2021 decision, the Fair Work Commission considered an unvaccinated worker’s dismissal from an aged care facility. The employee was a receptionist at the facility and there was a public health order in place in NSW, barring entry to such facilities to those without an influenza vaccination. The employer had previously advised its employees that if they were not vaccinated by a specified date they could not work onsite at the facility. When the employee refused vaccination, the employer sought medical evidence and to discuss the matter with her. The employee’s medical evidence was insufficient for the employer, and she declined to discuss the matter. The employer dismissed the employee.

The Fair Work Commission upheld the dismissal because

• The employee provided insufficient medical certification;
• The employer engaged in a fair procedure by consulting the Chief Medical Officer’s resources and seeking to consult the employee; and
• The employee could not perform the inherent requirements of her job. That is, she could not work as a receptionist without being present at the facility.

What does this mean for my workplace?

Employers should consider the following in implementing the current mandatory COVID-19 vaccination directions:

• Specific employees, their responsibilities and their interaction with the public, clients and others in the course of their work;
• Obligations to employees under work health and safety and anti-discrimination laws;
• Obligations under the public health directions; and
• Consultation requirements.

Contact us for assistance in managing your approach to mandatory covid-19 vaccines for Victorian workers.