The long waited ‘general’ public health orders regarding mandatory vaccination of employees have been issued in NSW and Victoria.
The Public Health (COVID-19 General) Order 2021 (NSW Order) is effective from 11 October 2021. In Victoria, the COVID-19 Mandatory Vaccination (Workers) Directions (Victorian Directions) took effect 8 October 2021. These supplement industry-specific orders in residential aged care, health, education, construction (in Victoria) and quarantine (NSW).
The orders require certain workers to be vaccinated against COVID-19 before they can work away from their home. However, there are differences in approach.
The NSW Order requires all employees who are not fully vaccinated to work from home unless it is not reasonably practicable to do so. This obligation is imposed on both employers and employees. An exception is single-dosed people who reside outside Greater Sydney. This applies until 1 November 2021.
The Victorian Directions only apply to defined workers. They oblige employers of those workers not to permit unvaccinated workers to work outside their home until they are fully vaccinated. An exception is if they have a booking to receive a single dose by 15 October 2021. Unlike the NSW Orders, the Victorian Directions do not impose any obligations on the workers (although arguably they have a common law duty under the employment contract to cooperate with their employer’s compliance with the Victorian Directions).
Under the Victorian Directions, an unvaccinated person is someone who has not received a first dose and is not an excepted person. A person is an excepted person if:
- they hold certification from a medical practitioner that they are unable to receive a dose, or a further dose, of a COVID-19 vaccine due to a medical contraindication; or
- they hold certification from a medical practitioner that they are unable to receive a dose, or a further dose, of a COVID-19 vaccine due to an acute medical illness (including where the person has been diagnosed with SARS-CoV-2).
A medical practitioner is defined (e.g. not a psychologist or a chiropractor). Medical contraindications are defined.
The NSW Order takes a different approach. A person establishes an exception by producing a certificate issued by a medical practitioner (undefined), in a form approved by the Chief Health Officer, certifying that because of a specified medical contraindication (undefined), the person to whom the certificate has been issued cannot have a COVID-19 vaccine.
In Kimber v Sapphire Coast Community Aged Care Ltd (2021), a majority of the Full Bench of the Fair Work Commission ruled that this required that an employee could only be exempt where the certified medical contraindication could be objectively established. The mere completion of the approved form was not enough.
The Victorian Directions create obligations on employers to collect, hold and use vaccination information (online immunisation history statement, a COVID-19 digital certificate from the Australian Immunisation Register or a medical contraindication certificate). This will exempt the requirement for employee consent under the Privacy Act 1988 (Cth) (which applies to private sector organisations with annual turnover exceeding $3m). However, organisations may still need to explain to employees how they are going to use that information (under Australian Privacy Principle 5).
The NSW Order is very unclear in respect of the employer’s right to access an employee’s vaccination history. Employees must carry this information if working from home and produce it on request by an ‘authorised officer’. Yet there is no definition for an authorised officer. Arguably, the Australian Privacy Principles will still apply to collection of vaccination information in NSW.
It is unclear whether the Victorian Directions apply to volunteers. A worker is a person who works, whether paid or unpaid. An employer is a person who employs or engages a worker. Employment cannot be unpaid. Work usually means employment. Engagement suggests some kind of contract, which may not be a volunteer relationship. Yet how can the Directions work if volunteers can attend premises unvaccinated? The safest course is to assume volunteers are covered.
Finally, employers need to deal with the fact that these instruments have short timelines, and it is unclear whether they will be renewed. Employers considering dismissal of unvaccinated employees who cannot work from home will need to take that into account.