The Commonwealth Government has commenced a nationwide, phased vaccination program for COVID-19. The approach to rolling out the vaccination is set out in Australian COVID-19 Vaccination Policy and will be supported by public health guidance and implementation strategies developed by the State and Territory Governments.
The National Roll-out Strategy explains the process by which COVID-19 vaccinations will be made available to different population groups, prioritised on medical grounds. While some public sector employees (for example, those working in hotel quarantine, public health or disability settings or emergency management response) are eligible to be vaccinated in Phase 1A and 1B of the roll-out which commenced on Monday 22 February 2021, most employees will receive their vaccinations at a later stage.
The purpose of this guidance is to provide information to Victorian Public Service departments and agencies and their employees on the Victorian Government’s approach to employment issues related to the national roll-out of COVID-19 vaccinations.
These policies apply to all departments and agencies of the State of Victoria and their non-executive level VPS employees, covered by the Victorian Public Service Enterprise Agreement 2020 (Agreement).
Advice for Victorian Public Service employers
In general, vaccination is voluntary but strongly encouraged by the Victorian Government where recommended by health advice. However, all COVID-19 Quarantine Victoria (CQV) frontline quarantine workers, which includes all persons employed or contracted to work in the COVID-19 Accommodation Program, are required to be vaccinated.
More broadly, whether an employer can give a lawful and reasonable direction to employees to be vaccinated against coronavirus is highly situationally dependent, taking account of factors such as the particular workplace, the nature of the role being performed and applicable medical or health advice.
Any mandatory direction to be vaccinated will be implemented consistently with the employer’s obligations under the relevant enterprise agreement, the Occupational Health and Safety Act 2004 (OHS Act), the Victoria Charter of Human Rights and Responsibilities and applicable anti-discrimination laws.
Supports for employees
The Victorian Government strongly encourages all employees to be vaccinated and expects all public service employers to assist employees in receiving a COVID-19 vaccination.
The following supports should be made available by employers:
|Employee group||Available supports|
|For employees required to be vaccinated because of a public health order or at the direction of their employer due to the nature of their role/work|
|For all other employees (excluding casuals)|
Employers may facilitate an employee’s attendance at a vaccination site (including reasonable travel time) through a range of mechanisms, including:
|For casual employees||Employers may facilitate an employee’s attendance at a vaccination site (including reasonable travel time) through flexible allocation of rostered shifts.|
Where onsite vaccinations are provided by the employer (ie, similar to seasonal flu) time release will only be provided to attend that onsite service.
In determining how the available supports are implemented, employers should have regard to:
- operational requirements,
- work location, including regional locations,
- employees’ working hours, including shift work, and
- vaccination roll out options available to an employee.
Existing leave and other supports available to employees
There are a range of other supports to assist employees with any side effects from the COVID-19 vaccination, including:
|Employee group||Available supports|
|Employees who become unwell or experience adverse reactions as a result of receiving the vaccine|
|Employees who are required to provide care and support for a member of their immediate family or household to support them to receive the vaccine or because they become unwell or experience adverse reactions as a result of receiving the vaccine|
Where an employee is absent due to an illness or adverse reaction associated with receiving the vaccine, the employee will be required to comply with the notice and evidence requirements set out in the VPS Agreement in order to access their accrued entitlements.
Employees working in roles which have mandatory vaccination requirements who refuse to be vaccinated
If an employer has provided a lawful and reasonable direction to be vaccinated and an employee refuses, the employer could also ask the employee to provide evidence of the reason for their refusal.
Directing an employee to provide evidence of a medical reason for refusing a vaccination is likely to raise privacy issues. Where an employer proposes to direct an employee to provide evidence, the employer should make sure that the requirement is also lawful and reasonable. Whether a direction would be lawful and reasonable depends on all of the circumstances. If it is unclear whether a direction or the employee’s refusal is reasonable, employers should seek their own legal advice.
An employee who is not vaccinated may not be permitted to participate in identified roles where a lawful and reasonable direction to be vaccinated is in place, as the employee will not be able to undertake the inherent requirements of the identified role.
In considering any employment consequences, employers must have regard to their obligations under anti-discrimination laws and the Charter of Human Rights and Responsibilities Act 2006.
Interaction between employees, clients or the general public who have and have not been vaccinated
Assuming that there is no relevant health advice preventing attendance, it is unlikely that an employee could refuse to attend their workplace where a co-worker isn’t vaccinated against coronavirus or where they may be required to work with clients or members of the general public, because:
- vaccination is not generally mandatory, except for CQV frontline quarantine workers, and most workplaces won’t be able to require their employees to be vaccinated, nor is it likely vaccines will become mandatory for the general population
- the co-worker, client or member of the general public may have a legitimate reason not to be vaccinated (for example, a medical reason).
If an employee refuses to attend the workplace because a co-worker isn’t vaccinated or because they do not wish to work directly with clients or members of the public, their employer can direct them to attend the workplace if the direction is lawful and reasonable. Whether a direction is lawful and reasonable depends on all of the circumstances, including the employer’s occupational health and safety obligations, and whether the employee has a particular vulnerability.
If it is unclear whether a direction or an employee’s refusal is reasonable, employers should consider seeking advice before taking disciplinary action.
If an employee has concerns about the safety of the workplace, they should raise them with their employer as soon as possible. Employers are required to comply with the consultation requirements in the Occupational Health and Safety Act 2004 (Vic).
Continuation of COVID-safe practices
The vaccines will help protect recipients by either preventing or reducing symptoms of COVID-19.
However, at this stage it is too early to tell if the vaccines will stop a recipient from being infected with the virus. This means that a vaccinated person may unknowingly carry and spread the virus to others around them, including workers and others in their workplace. Because of this, employers must continue to apply all reasonably practicable control measures.
A safe and effective vaccine is only one element of keeping the community safe and healthy. Employees should take the following steps to continue to help prevent the spread of COVID-19:
- follow the public health orders in Victoria
- not attend work when they are unwell, have COVID-19 symptoms or have been told to stay at home by health officials (eg, you are required to quarantine or have been tested for COVID-19)
- do all they reasonably can to work safely, including observing controls the employer has put in place for COVID-19 (such as physical distancing and cleaning processes and procedures)
- follow training and instructions the employer has provided (eg, about how to wash hands thoroughly)
- ask if unsure how to safely perform the work
- use personal protective equipment as outlined in local procedures such as masks, gloves, face shields etc in accordance with any provided training, and
- report any unsafe situations (eg, a lack of soap in the bathroom or insufficient personal protective equipment) to a supervisor or to the health and safety representative.
Employers are required to continue to comply with their obligations under the Occupational Health and Safety Act 2004 (Vic), public health directions and to continue to make sure everyone in their workplace keeps practicing COVID-19 control measures even after the vaccine roll-out begins.
Employers should ensure that any applicable consultation obligations under the relevant enterprise agreement and the Occupational Health and Safety Act 2004 (Vic) are met.
Employers must ensure that any personal or health information recorded from their employees or individuals is collected, recorded and stored in accordance with the employer’s obligations under the Privacy and Data Protection Act 2014 and the Health Records Act 2001.
Requests from clients or the general public regarding the vaccination status of employees
Employees have the right to privacy with regard to their vaccination status. Where a client or relative of a client requests evidence that staff who are providing relevant services 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.
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.
Reviewed 28 May 2021