Vaccination requirements FAQs

Frequently asked questions about vaccination requirements for Victorian public service employees

What are an employer’s consultation obligations when implementing vaccination requirements?

Where mandatory vaccination requirements are to be put in place, it is important that employers meet any consultation requirements under the relevant legislation (including the FW Act or the OHS Act) and any applicable industrial instruments. Consultation should take place with employees, HSRs and relevant unions about how the requirements will be implemented and managed at their site(s). However, where the vaccine mandate is in response to a CHO direction, care should be taken to ensure that the consultation process does not impair the employer’s capacity to comply with the direction.

What steps should an employer take to ensure that any disciplinary action taken with respect to a vaccination or attendance requirement is upheld?

To ensure any disciplinary action taken with respect to a vaccination or attendance requirement is upheld, employers should:

  • clearly explain the obligations on employees including reporting requirements and timing for implementation
  • identify the consequences for employees who fail to comply with the requirement
  • ensure COVID safe work practices are in place, maintained and communicated to employees
  • have appropriate procedures and mechanisms for dealing with employees who are Excepted Persons or have specific vulnerabilities
  • ensure implementation timeframes are reasonable
  • ensure any directions to employees are lawful and reasonable
  • comply with relevant enterprise agreement requirements, particularly with respect to misconduct/discipline, consultation and OHS requirements, and
  • comply with all legislative requirements, including anti-discrimination obligations

Do employees have to be vaccinated if they work from home on a regular basis?

Employees who are being directed to work entirely from home are not covered by a CHO direction at this stage, unless they are required to be ready and able to be deployed to undertake work outside of their ordinary place of residence. Employees who work from home regularly may still need to be vaccinated in order to attend a work location or fulfil their ordinary duties (for example, to visit the workplace for team workshops, to visit the location of a third party or to perform work outside of their ordinary place of residence or to be ready to be deployed to duties at the workplace or outside of their ordinary place of residence).     

Can an employer request evidence from employees that they have complied with a CHO direction to be vaccinated?

CHO Orders generally set out what information is required to be collected or sighted from Employees. In the absence of a CHO Order, employer requests for vaccination information would need to satisfy the lawful and reasonable direction test.

Employers may require evidence of an employee’s vaccination status using:

  • proof of vaccination against COVID-19 through the Commonwealth Government’s myGov website (for employees who are Australian citizens
  • from the employee’s vaccination provider,
  • from the Australian Immunisation Register, or
  • proof of a booked vaccination appointment in terms consistent with the applicable vaccination requirement

Where a vaccination requirement exists, employees who are Excepted Persons must provide acceptable certification as outlined in the CHO direction.

When are employees exempt from vaccination requirements under the Mandatory Vaccination Directions issued by the CHO?

Employees may be exempted from the vaccination requirements if they hold acceptable certification from a medical practitioner stating that they are unable to receive a vaccine dose due to a medical contraindication or an acute medical illness. If one of these applies, then the employee is an Excepted Person.

What evidence is required to confirm an employee is an Excepted Person?

Evidence provided by an employee must consist of an acceptable certification as outlined in the CHO direction.

Acceptable certification consists of either:

  • a current COVID-19 digital certificate issued by Services Australia and displayed through the Medicare App, Service Victoria App or equivalent smartphone wallet, that states that each person is unable to receive a dose, or a further dose, of any COVID-19 vaccine that is available in Australia; or
  • a printed version of the COVID-19 digital certificate referred to above

What medical exceptions apply?

A medical contraindication means a contraindication to the administration of a COVID-19 vaccine as determined by the Australian Technical Advisory Group on Immunisation's clinical guidance on the administration of COVID-19 vaccines in Australia.

By way of illustration, COVID-19 Mandatory Vaccinations (Workers) Directions issued on 18 November 2021 provided that ‘medical contraindication’ means one of the following contraindications to administration of a COVID-19 vaccine:

(a) anaphylaxis after a previous dose

(b) anaphylaxis to any component of the vaccine, including polysorbate or polyethylene glyco

(c) in relation to AstraZeneca:

  • history of capillary leak syndrome; or
  • thrombosis with thrombocytopenia occurring after a previous dose

(d) in relation to Comirnaty or Spikevax:

  • myocarditis or pericarditis attributed to a previous dose of either Comirnaty or Spikevax, or

(e) the occurrence of any other serious adverse event that has

  • been attributed to a previous dose of a COVID-19 vaccine by an experienced immunisation provider or medical specialist (and not attributed to any another identifiable cause), and
  • been reported to State adverse event programs and/or the Therapeutic Goods Administration

An “acute medical illness” is generally time limited according to the date specified by the medical practitioner, or six months from the date of the certificate, whichever is earlier.

What consequences are there for employees found to have falsified evidence of a vaccination record or Excepted Employee status?

Falsification of a vaccination record or evidence of Excepted Employee status, if substantiated, will constitute serious misconduct and grounds for termination of employment. There are also penalties under the Public Health and Wellbeing Act 2008 for providing false and misleading information to regulators in certain circumstances.

Where an employer or workplace setting is covered by a vaccination requirement issued by the CHO, then any exemptions will be listed in the direction. Generally, only medical grounds or exceptional circumstance (for example emergency and/or safety-related purposes) exemptions are permitted.

Where an employer, not covered by a mandatory vaccination direction issued by the CHO, seeks to make a lawful and reasonable direction, it will be up to them to decide applicable exemptions, in consultation with their employees and relevant unions. Any exemptions or limitation on exceptions must be consistent with the terms of the relevant contract of employment and with the employer’s legal obligations, including their obligations under occupational health and safety, industrial and anti-discrimination law.

Can an employer request the vaccination status of employees who are not subject to a mandatory vaccination direction?

The COVID-19 pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus or to report their vaccination status to their employer. Any direction to employee cohorts not covered by a mandatory vaccination requirement to report vaccination status must be implemented consistently with the terms of the relevant contract of employment, and/or the relevant enterprise agreement, the OHS Act, the Victoria Charter of Human Rights and Responsibilities, advice issued by the Fair Work Ombudsman, applicable anti-discrimination laws and consistent with public health advice.

In order to provide a safe work environment, employers may request employees provide information in relation to their vaccination status. This information may assist employers to determine what COVID-safe protocols are required at the workplace (including working from home arrangements).

Can an employer make being vaccinated a condition of employment for future recruiting?

In most cases, yes. An employer in an affected industry may require a prospective employee to be vaccinated against COVID-19, as long as they are not contravening anti-discrimination or equal opportunity legislation. This is true particularly in industries where there may be health and safety risks as a result of COVID-19 exposure. Such a requirement should be consistent with the terms of the relevant contract of employment, and/or the relevant enterprise agreement, the OHS Act, the Victoria Charter of Human Rights and Responsibilities, advice issued by the Fair Work Ombudsman, applicable anti-discrimination laws and consistent with public health advice.  Employers should seek their own advice if in any doubt.

My staff or clients are asking about the vaccination status of my employees, what can I tell them?

Employees have the right to privacy regarding their vaccination status. Where a client, a member of the general public, or another employee requests evidence that staff have been vaccinated, employers must ensure their response complies with their relevant privacy obligations and, in particular, ensure they do not disclose any information about an individual’s personal, vaccination or health status without their consent.

Responses to such requests for information should be limited to confirming that all necessary steps have been taken to ensure compliance with relevant public health directions so that the safety of clients, visitors and staff is protected.

What if my employees are required to attend a third-party’s workplace to which a mandatory vaccination order is in place as part of their ordinary duties, but they refuse or are unable to confirm their vaccination status to the third-party site operator?

Where employees are unable to perform their ordinary duties because they refuse or are unable to confirm their vaccination status to a third-party site operator, the employer should follow the process set out in the Managing refusals to comply with vaccination requirements and those who are excepted persons section of this guidance.

What if my employees experience occupational violence and aggression at work due to the implementation of COVID-19 restrictions?

Employers should have a zero-tolerance approach to occupational violence and aggression directed at or by employees. Work-related violence and aggression involve incidents in which a person is abused, threatened or assaulted in circumstances related to their work. 

If employees encounter or witness an incident of occupational violence, employees should report this to their manager and ensure that the report is filed and managed in accordance with any occupational health and safety procedures and/or incident management system. The incident may also be reported to relevant Health and Safety Representatives (HSR) or Management Health & Safety Representative (MSR). 

Allegations of occupational violence by employees should be managed under any management of misconduct policy. 

Reviewed 26 November 2021

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