Mandatory vaccination for Victorian workplaces
In a previous article Passports to work: Vaccine passports in the workplace, we provided some general advice to guide employers when deciding on vaccination requirements in their workplace. In this article, we specifically consider the Victorian Government’s vaccine mandates and the implications for employers, employees and contractors.
The vaccine mandates are made by the Chief Health Officer under the Public Health and Wellbeing Act 2008 (Vic). Under the COVID-19 Mandatory Vaccination Directions most workers working at any place other than their home will need to be vaccinated.
Previously, only specified industries and workers could return to onsite work, but now most workplaces, including offices, can re-open provided that their employees are vaccinated.
Obligations on employers and site operators
The health directions require employers and site operators to collect, record and hold vaccination information for the relevant workers, and to only permit those workers who can provide evidence of being vaccinated to attend onsite or carry out work outside their home (unless they have an approved medical exemption). If a worker cannot provide the evidence of their vaccination status, the employer or site operator cannot permit them to attend the site or carry out work outside their home.
Certain industries can permit workers onsite provided that their workers have received at least one dose of a COVID-19 vaccine, with the workers required to receive a second dose by 26 November 2021, or 29 November 2021 for the education industry and 15 December 2021 for the healthcare industry.
Other employers can only allow employees onsite if they are fully vaccinated, or the employee has a valid medical exemption.
The medical exemptions are narrow, and if you do have an employee claiming a medical exemption it is important to ensure that their exemption qualifies under the health directions.
If an employer or site operator fails to comply with the directions, they may receive an infringement notice or they may be prosecuted. If they are prosecuted a court may impose a fine of up to $21,808.80 per offence for individuals and $109,044.00 for bodies corporate.
Unvaccinated workers
The greatest difficulty for employers and site operators with the vaccine mandates arises where workers are not vaccinated and do not have a valid medical exemption from a medical practitioner.
In relation to employees of a business, in the first instance we recommend considering whether unvaccinated employees can work from home.
If that is not possible, and the effect of the vaccine mandate is that they cannot carry out the work for which they are employed, then you will need to consult with the relevant employees and explain their options to them. This could include:
- Asking your employees to take paid annual leave or long service leave;
- Asking your employees to take unpaid leave;
- If your unvaccinated employees could carry out some (but not all) of their work from home, only employing them for the hours that they can work at home;
- For casual employees, not providing shifts as long as the mandate is in place.
If those options are not viable for a particular employee, then you may have no choice but to treat the employee as being absent from work without leave or stand the employee down from work on the basis that they are not able to lawfully carry out the work for which they were employed.
For employers with employees who could work from home, but who wish to have employees return to onsite work, care will need to be taken to ensure that any directions to employees that they receive a vaccine so that they can return to onsite work is reasonable in the circumstances.
As a last resort, you may consider dismissing the employee. For employees protected from unfair dismissal under the Fair Work Act 2009 (Cth), you would need to be satisfied that the dismissal was fair in the circumstances, having regard to the business’s situation, the employee’s period of service, whether alternative options are available, the likely length of the vaccine mandate and any other factors that may be relevant.
If you have unvaccinated contractors that are required to work onsite, in most circumstances you could require them to cease providing their services on the basis that they cannot lawfully carry out their duties under their contract. However, the exact approach will vary depending on the terms of the contract and you should review your contractor agreements, and in particular the default and termination clauses.
Conclusion
It is to be hoped that the vaccine mandates will facilitate the re-opening of the Victorian economy, but it does also place businesses with unvaccinated workers in a difficult situation. If you would like advice on your business’s particular situation, including assistance with drafting communications to workers, please feel free to contact us.
* This article was updated on 15 November, 2021
How Sharrock Pitman can help?
Our team legal team can assist you by advising on your rights and taking action on your behalf. If you require any assistance on this matter or other employment law issues, please do not hesitate to contact our employment lawyers on 1300 205 506 or get in touch by email at sp@sharrockpitman.com.au or by filling in the contact form below.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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