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Vaccination requirements for Victorian public service employers

Guidance for Victorian public service employers about the Mandatory Vaccination Directions.

Context

Vaccination against COVID-19 is critical in limiting the spread of the virus within the workplace and community and continues to be strongly encouraged by the Victorian Government. Victorian Public Sector Employers have a responsibility under the Occupational Health and Safety Act 2004 (OH&S Act) to ensure that their places of work are, as far as reasonably practicable, safe and without risk to health. Vaccination is a key risk mitigation strategy to ensure that the risk of COVID-19 infection in the workplace is managed.

This guidance applies where Employers have issued a lawful and reasonable direction that employees only be permitted to attend the workplace if their vaccination status is up to date or they are medically excepted in order to comply with:

  • a Pandemic Order issued by the Minister for Health under the Public Health and Wellbeing Act 2008, and/or
  • an Employer issued COVID-19 Vaccination Requirements Policy in place to manage ongoing health and safety risks in the workplace.

Vaccination against COVID-19 continues to be strongly encouraged by the Victorian Government and the efforts by public sector employees to contribute to Victoria’s vaccination efforts to date are greatly appreciated. For public sector employees who are yet to be vaccinated, the Victorian Government continues to support these efforts with up to half a day paid time off to attend each vaccination appointment (including for a third dose), and in some workplaces with onsite vaccination programs. These supports are available regardless of whether Pandemic Orders and/or a COVID-19 Vaccination Requirements Policy apply to your employment. More information on COVID-19 vaccines and bookings is available from the Coronavirus Victoria websiteExternal Link .

Application

This guidance is intended to provide consistent direction for Victorian Public Service employers and employees in managing the implementation of a COVID-19 Vaccination Requirements Policy and/or where a Pandemic Order is in force. This advice may also be used as a guide by Victorian public sector employers, recognising that they may already be implementing their own COVID-19 Vaccination Requirements Policies following consultation or have existing policies in place to implement relevant Pandemic Orders.

Assistance for employees to be vaccinated

The Victorian Government is encouraging all eligible Victorians to maintain an up-to-date vaccination status. You can maintain your vaccination status by booking an appointment either via state-run vaccination centres, pharmacists, local medical practitioners or other local options. It is critically important that as many employees as possible have up to date vaccination to minimise the risk to themselves, their colleagues, their families, and the wider community. More information on COVID-19 vaccines and bookings is available from the Coronavirus VictoriaExternal Link website.

Public Sector employees can access up to half a day’s paid time off for each vaccination appointment which falls during their ordinary hours of work (including for a third dose). In certain workplaces, onsite vaccination programs are also available. See Supports for Victorian Public Service and the Victorian Public Sector employees getting a COVID-19 vaccination for further information.

Lawful and reasonable directions

All employees are under a contractual obligation to observe the lawful and reasonable directions of their employer. Failure to do so would constitute a breach of contract, which could lead to the imposition of disciplinary sanctions, and in some instances, to termination of employment.

Under an Employer’s policy, refusal to observe a direction to provide evidence of their vaccination status or a refusal to work outside of their ordinary place of residence may constitute a breach of contract.

Employees who cannot have a COVID-19 vaccination because they have a medical contraindication, or an acute medical condition which prevents vaccination or further vaccination must advise their employer and provide appropriate medical evidence from an authorised medical practitioner.

Managing refusals to comply with vaccination requirements and those who are excepted persons

An employer’s vaccination policy or a Pandemic Order does not positively require that employees be vaccinated, rather it imposes requirements upon the employer in relation to how it deals with unvaccinated or under-vaccinated employees or employees whose vaccination status is unknown. A Pandemic Order and/or an employer’s vaccination policy will require that Employees will only be permitted to attend the workplace if their vaccination status is up to date or they are medically excepted (subject to the terms of the policy or order). If an employer does not hold vaccination information about an employee, the employer will treat the employee as if they are unvaccinated.

An employee may be medically excepted because of a medical contraindication or an acute medical condition, which prevents vaccination or further vaccination. The Employer’s vaccination policy or Pandemic Order (as relevant) will set out relevant exemptions (if any). Employees with exceptions must advise their employer and provide acceptable certification in accordance with the Employer issued COVID-19 Vaccination Requirements Policy and/or Pandemic Orders (as relevant).

The Employer will adopt the following strategies to manage the practical issues that flow from an employee’s non-vaccinated or under-vaccinated status or an employee with medical exceptions. Employees who refuse to provide evidence as to their vaccination status, and/or who refuse or are unable to confirm their vaccination status to a third-party site operator to gain access to the site to perform their duties will be treated as if they are unvaccinated for the purposes of the Employer’s vaccination policy.

There are five scenarios in which the employer will need to apply the appropriate management strategies set out in this section:

  • An Employee who remains unvaccinated by the required time as outlined in the Employer issued COVID-10 Vaccination Requirements Policy or any relevant Pandemic Order which means they cannot perform work outside of their ordinary place of residence.
  • Employee refusal to provide evidence to the employer of their vaccination status, proof of an appointment to be vaccinated, or acceptable certification to support status as an Excepted Person.
  • Employee refusal or inability to confirm vaccination status to a third-party site operator in order to gain access to that site to perform the employee’s ordinary duties.
  • The Employee is an Excepted Person because they have a medical contraindication or an acute medical condition, which prevents vaccination or further vaccination.
  • The Employee was prevented from meeting the requirement to achieve up to date vaccination by the deadline due to recent (or probable) COVID infection or a period of required self-quarantine or self-isolation.

There are several options with varying degrees of seriousness that are available in some or all of these situations.

Employees who are Excepted Persons or persons unable to achieve up to date vaccination by the deadline due to recent (or probable) COVID infection or a period of required self-quarantine or self-isolation

The process below will be followed by VPS departments and agencies for employees who are Excepted Persons due to a medical contraindication or acute medical condition or where the employee was unable to achieve up to date vaccination (which may vary depending on their profession or place of work) due to recent (or probable) COVID infection or a period of self-quarantine or self-isolation:

Step 1: Where the employee is not vaccinated because they are an Excepted Person or has not achieved up to date vaccination by the relevant timeframe due to recent (or probable) COVID infection, it may be appropriate for them to continue to perform their work where permitted within the terms of the relevant Pandemic Orders or Employer issued COVID-19 Vaccination Requirements Policy and/or by putting in place other measures, where reasonably practicable, to protect the employee’s health and safety and that of others (for example: ensuring they can do their work with limited or no contact with other people, personal protective equipment or other reasonable safety measures).

Step 2: If it is not appropriate for them to continue to work in their substantive position, then the employer must make a genuine attempt to reassign them to alternative work where vaccination is not required. For example, the employee can be reassigned to perform duties at home where this option is reasonably available. It should be noted that working from home is a temporary arrangement only.

Step 3: Where it is not safe for the employee to continue to work in their substantive position or be reassigned, the employer may permit the employee to take accrued leave or leave without pay for a temporary period up until the final compliance date for up-to-date vaccination (or longer period as agreed with the employer based on the operational requirements of each workplace). During this time the employer should continue to look for reassignment opportunities.

Step 4: Where the employee does not wish to take accrued leave or leave without pay (or has exhausted their accrued leave), and where undertaking their substantive work is not safe, reassignment is not practicable and attempts to find alternative employment have not been successful, the employer may seek to terminate employment on the grounds that the employee can no longer fulfil the inherent requirements of the role or is not complying with a lawful and reasonable direction (as relevant and subject to the circumstances of the individual case). Steps taken by the employer to terminate an employee’s employment must be carried out consistent with this guidance and the employer’s legal obligations. Termination of employment for Excepted Persons should be an option of last resort. Employers will not commence action to terminate the employment of Excepted Persons any earlier than the final compliance date of any Employer issued COVID-19 Vaccination Requirements Policy and/or relevant Pandemic Order. Any actions taken must be consistent with anti-discrimination obligations.

With respect to Step 2, 3 and 4, further consideration should be provided where employees are unable to receive a third dose by the relevant third dose deadlines where the Employee was in self isolation because they were diagnosed with COVID-19 or had a probable case of COVID-19 and, has a booking to receive a third dose. Where this is the case, delays to consequence management, as set out above, may be considered by Employers. However, any leave provided should not be considered as a means of avoiding third dose requirements in the longer term.

Employees who refuse to comply with vaccination requirements

An employee who is covered by a mandatory vaccination direction, either through application of a relevant Pandemic Order or an Employer issued COVID-19 Vaccination Requirements Policy, might refuse to comply with the direction in the following ways:

  • employee remaining unvaccinated or failing to obtain up to date vaccination by the expiration of the timeframes outlined within any relevant Pandemic Order or Employer issued COVID-19 Vaccination Requirements Policy which means they cannot perform work outside of their ordinary place of residence or at the workplace.
  • refusal to provide evidence to the employer of their vaccination status or proof of an appointment to be vaccinated or evidence to support a medical exemption.
  • refusal or inability to confirm vaccination status to a third-party site operation to gain access to that site to perform the employee’s ordinary duties.

Step 1: The employer must reiterate the requirement for the employee to have an up-to-date vaccination status to perform work outside of the Employee’s residence or to report their vaccination status. The employer should explain the consequences of continued refusal to comply with this direction, including the possibility that their employment may be terminated. Any reasons provided by the employee should be recorded and an employer response provided.

Step 2: Limited temporary reassignment until expiration of any relevant compliance date outlined in the relevant Pandemic Order or Employer issued COVID-19 Vaccination Requirement Policy may also be available in these scenarios. However, priority for reassignment will be given to those who are Excepted Persons who cannot continue to work in their substantive position or persons unable to achieve up to date vaccination due to recent (or probable) COVID infection or a period of required self-isolation or self-quarantine. As such, opportunities for reassignment are expected to be minimal and the employer is under no obligation to create alternative roles.

Step 3: Employees in these circumstances may be granted a temporary period of unpaid leave to give them time to consider the information that has been provided to them, and to evaluate their position. The employer may also permit employees to have access to accrued leave entitlements (such as annual leave or long service leave). However, employees should generally be advised that this is a short-term solution. Employers should also consider their operational requirements when determining the extent to which leave will be provided in these circumstances. For example, it may be operationally inconvenient for a number of key personnel to be absent for a certain period of time. While employees may be provided with a short period of leave to consider their position, leave should not be considered as a means of avoiding workplace vaccination requirements in the longer term. Nevertheless, granting leave may be an appropriate option in some instances.

Step 4: Where employees continue to refuse to be vaccinated or confirm their vaccination status, their employment may be terminated:

  • on the grounds that they can no longer fulfil the inherent requirements of the role, or
  • for failure to comply with a lawful and reasonable direction from the employer.

In the second case, the employer will initiate misconduct or disciplinary proceedings against the employee for failure to comply with a lawful and reasonable direction. Ultimately this may lead to the termination of the individual’s employment. The employer may commence termination of employment actions on or around the final compliance date of the relevant mandatory vaccination direction.

Termination on the grounds of failure to comply with a lawful and reasonable direction

In either of the scenarios above, where an employer seeks to terminate the employment of an employee due to their inability to fulfil the inherent requirements of the role, the employer should refer to the employment contract, any applicable position description statement or industrial instrument. In order to base termination on this ground, physical attendance for on-site work or work outside of the home must be an inherent requirement of the role. In these circumstances, if the employee is unvaccinated, they cannot attend work or perform their ordinary duties due to the fact that a vaccination direction (however derived) precludes unvaccinated or under vaccinated persons from undertaking work outside of the employee’s ordinary place of residence or at the workplace.

Termination on the grounds of failure to fulfil the inherent requirements of a role

Refusal to observe a direction to provide evidence of their vaccination status or a refusal to work outside of their ordinary place of residence, in accordance with an Employer’s policy, may constitute a breach of contract, which may ultimately lead to the termination of the employee’s employment.

Where an employer seeks to terminate the employment of an employee due to a failure to comply with a lawful and reasonable direction, they must follow the misconduct or disciplinary procedure as set out in the applicable industrial instrument and other legislative obligations.

Managing refusals by an employee to work outside of their ordinary place of residence or work with unvaccinated employees, staff, or clients

An employer direction to an employee to attend a workplace or other location is highly likely to be regarded as lawful and reasonable provided reasonably practicable precautions have been put in place to ensure the direction would not expose the employee to an unreasonable level of risk to their health and safety. If an employer directs an employee who has been working from home to attend at their normal place of work or another location outside of their ordinary place of residence, a refusal by the employee to observe that direction would be a breach of contract and could constitute a failure to observe a lawful and reasonable direction.

However, an employer direction would not be lawful and reasonable if observing it would expose the employee to an unreasonable level of risk to their health and safety. It should also be noted that an employer that instructed an employee to attend at an unsafe workplace or other location might itself be in breach of its obligations under the OHS Act.

If an employee refuses to attend the workplace because a co-worker isn’t vaccinated (or has an unknown vaccination status) or because they do not wish to work directly with clients or members of the public or work outside of their ordinary place of residence, their employer can direct them to attend the workplace if the direction is lawful and reasonable.

Employees must observe the lawful and reasonable directions of their employer. For a direction to be lawful, it must be consistent with the relevant enterprise agreement or State and Commonwealth law that applies (for example, occupational health and safety or anti-discrimination law). Whether a direction is reasonable is highly situational and must take into account factors such as the particular workplace, the nature of the role being performed and applicable medical or health advice.

Where an employer has issued a direction to their employees to attend the workplace or a work-related location and an employee refuses to attend, the employer should:

  • remind the employees of the requirement to attend the workplace
  • clearly explain the obligations on employees to attend the workplace including the employer’s operational requirements
  • outline the measures taken to ensure a safe working environment will be provided
  • explain the mechanisms for dealing with employees who are Exempted Persons or have other specific vulnerabilities
  • identify the consequences for employees who continue to fail to comply with the direction to attend the workplace, including the possibility their employment may be terminated, and
  • consider and record any reasons provided by the employee about why they are refusing to attend the workplace or work-related location.

The employer should also provide a further short opportunity (where appropriate) for the employee to comply with the direction to attend the workplace or other location before commencing any formal disciplinary or misconduct proceedings.

Any disciplinary action taken against an employee for refusing to return to the workplace or work outside their ordinary place of residence must be taken consistent with the misconduct or disciplinary procedures set out in the applicable enterprise agreement and other relevant legislative obligations.

If it is unclear whether a direction or an employee’s refusal is reasonable, employers should consider seeking advice before taking disciplinary or other legal action.

Other considerations

Record Keeping

Under current Pandemic Orders, employers must collect, record and hold vaccination information about affected employees. An employer must keep the necessary records to demonstrate compliance with the relevant directions. Employers may elect to do this by:

  • requesting the information individually from each worker and making a record confirming the evidence was sighted; or
  • requesting and holding copies of evidence which supports the employee’s vaccination status including a record of vaccination from a medical practitioner, a certificate of immunisation or an immunisation history statement

If using the first method, an employer must make a record confirming their compliance with the mandatory vaccination requirement. A record may include a worker’s name, vaccination status, details of the individual who checked evidence of compliance, the date the evidence was recorded, and/or the nature of the evidence. Employers may also do this under employer directed vaccination requirements to the extent permitted by law.

Privacy

Regardless of the record keeping method chosen, Employers must ensure that any personal or health information recorded from their employees is collected, recorded, stored and disclosed if needed, in accordance with the employer’s obligations under the Health Records Act 2001 and Privacy and Data Protection Act 2014.

The Office of the Victorian Information Commission (OVIC) and the Office of the Health Complaints Commissioner (HCC) jointly published guidanceExternal Link to help VPS organisations and health providers that handle health information understand their privacy obligations while dealing with the coronavirus (COVID-19).

Further information on privacy obligations is available on the Office of the Victorian Information CommissionerExternal Link website.

Confidentiality

Employers must ensure information recorded and stored is kept confidential. Access to evidence of an employee’s vaccination status or Excepted Persons status should be limited to those who need to enforce a vaccination direction, in line with, for example, existing practices regarding the management of WorkCover or misconduct matters. For example, a supervisor required to roster employees may be supplied with a list of employees who are able to be rostered (because they are vaccinated or Excepted Persons), but not provided with additional information (from HR records), such as a copy of a certificate of immunisation, if it is not necessary to ensure safe rostering.

Anti-Discrimination

Vaccination status is not in itself a protected attribute under the Equal Opportunity Act 2010 (Vic) (EO Act). However, discrimination could arise in circumstances where an employee was disadvantaged due to the fact that they were unvaccinated and the reason for this was that they possessed a relevant ‘protected attribute’, and the employer failed to make ‘reasonable adjustments’.

Further information is available from the Victorian Equal Opportunity and Human Rights CommissionExternal Link .

Further, federal and state anti-discrimination laws co-exists, and employers should ensure that any requirement for mandatory vaccination considers their obligations under relevant federal anti-discrimination legislation (including Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA).

Further information is available from the Australian Human Rights CommissionExternal Link .

Human Rights

The Victorian Charter of Human Rights and Responsibilities (Charter) sets out the human rights that Victorians enjoy, as well as the responsibilities on public authorities to protect and promote those rights. The rights are not absolute and can be limited in some circumstances. Any limitation on rights must only go as far as necessary to achieve a legitimate purpose, and if limiting a right is necessary, the action taken should be reasonably justified and proportionate, and the least restrictive means available. Requiring certain employees to be vaccinated is considered to be a necessary and proportionate response relative to the risk to employees and clients of contracting or spreading COVID-19 to employees or vulnerable clients within higher risk settings.

Further information can be obtained from the Victorian Equal Opportunity and Human Rights CommissionExternal Link .

Consultation

Employers should ensure that any applicable consultation obligations under relevant legislation and/or industrial instruments (including with Health and Safety Representatives) are met, understanding that the ability to adhere to these obligations may be constrained by the requirements to comply with a Pandemic Order where they apply.

Reviewed 17 June 2022

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