COVID-19 vaccination mandated for all Victorian authorised providers and authorised workers

On Friday 1 October 2021, the Victorian Government announced that COVID-19 vaccinations will be mandatory for all Victorian authorised providers and authorised workers who are not working from home.

The Government has stated that as authorised workers are currently moving around Victoria the most, it is vital they get vaccinated to protect themselves, their families and all of Victoria.

Accordingly, all authorised workers will be required to receive their first dose by Friday 15 October 2021 and be fully vaccinated by Friday 26 November 2021 in order to perform work on site.

The requirement to be vaccinated applies to all authorised workers, regardless of whether they are in metropolitan Melbourne or regional Victoria.

The 15 October first-dose deadline will not impact the existing industry-specific vaccination deadlines in place for the construction, education, freight, healthcare and residential aged care industries.

A timeline of the key dates can be found here.

Authorised providers, authorised workers and authorised health services

Authorised providers are businesses and organisations that can open in Restricted Areas (i.e. metropolitan Melbourne and Restricted Area Local Government Areas in regional Victoria) when there are only five reasons to leave your home, with authorised workers being those individuals required to perform the essential tasks delivered by these businesses and organisations, including an authorised health service. A full list of authorised providers, authorised workers and authorised health services is set out at Annexure A: Authorised workers.

Anyone on the list, even if not in a locked-down area, must comply with the new vaccination requirement.

Which employees are already covered by a mandate to obtain a vaccine in Victoria under a public health order?

Other professions already subject to vaccine mandates, including teachers, healthcare workers and construction workers are not affected by the new mandate and will remain subject to the timelines set out in the applicable public health direction, as set out in the table below and most recently updated in the COVID-19 Mandatory Vaccination Directions (No 4) (Directions).

Aside from the requirement for mandatory vaccination of authorised workers, it is currently unclear what specific obligations will be imposed on authorised providers, as the public health directions underpinning the vaccination mandate for authorised workers is yet to be released.

We anticipate that they will be similar to the obligations imposed on operators in the industries that are subject to the current Directions, which include an obligation to:

• collect, record and hold vaccination information; and
• take reasonable steps to prevent entry of unvaccinated workers onsite

Under clause 4 of the Directions, operators must collect, record and hold vaccination information as soon as practicable after the commencement of the relevant date directions and before the date the mandatory vaccination requirements are imposed.

This includes collecting:

• proof of full vaccination
• proof of partial vaccination and a booking for a second dose by the relevant deadline; or
• proof of no existing vaccination but a booking for a first dose by the relevant deadline

Employers who collect vaccination information in accordance with the public health directions are authorised to collect and use the information for the purposes of privacy and health legislation. The directions also permit disclosure of information to the operator of a site or authorised officers under the Public Health and Wellbeing Act 2008 (Vic), where necessary.

Under clause 5 of the Directions, after the specified dates, operators must take reasonable steps to prevent entry onsite, or the remaining onsite, of:

• unvaccinated workers who have not received their dose or, in some instances, obtained a first dose booking by the relevant deadlines; or
• workers who have not provided their vaccination information or proof of a valid exception

unless there is an emergency situation or critical unforeseen circumstance requiring the worker to be onsite (discussed further below).

Are there any exemptions or exceptions?

Again, until the public health directions underpinning the vaccination mandate for authorised workers are released, the precise nature and extent of any exemptions or exceptions is unclear. However, guidance published by the Government states that:

• limited exemptions apply, including medical exemptions and for the consular and diplomatic corps
• in limited exceptional circumstances, an operator can approve unvaccinated workers to continue working if it is necessary, including:
  • for a worker to provide for urgent specialist clinical or medical care at the work premises due to an emergency situation or a critical unforeseen circumstance; or
  • for a worker to fill a vacancy to provide urgent care, to maintain quality of care and/or continue essential operations at the work premises due to an emergency situation or a critical unforeseen circumstance; or
  • for a worker who is required to attend the premises to respond to an emergency at the work premises; or
  • for a worker to sustain human or animal health, safety and wellbeing where a vaccinated worker cannot be sourced in a timely manner; or
  • for a worker to make a premises safe and secure, or to perform urgent and essential work to protect assets and infrastructure where a vaccinated worker cannot be sourced in a timely manner.

It therefore seems likely that the exceptions will reflect those under the Directions, as detailed below.

Excepted persons and medical contraindications

The COVID-19 Mandatory Vaccination Directions (No 4) provides for the following categories of "vaccination status":

• fully vaccinated
• partially vaccinated
• unvaccinated
• excepted person

An excepted person is a person who has obtained certification from a medical practitioner that they are unable, due to a medical contraindication to receive a dose, or a further dose, of a COVID-19 vaccine.

An excepted person does not have the vaccination status of "unvaccinated" (or "partially vaccinated"), and an operator is not subject to an obligation to exclude them from entry.

A medical contraindication is defined as meaning one of the following contraindications to the administration of a COVID-19 vaccine:

• anaphylaxis after a previous dose
• anaphylaxis to any component of the vaccine, including polysorbate or polyethylene glycol
• in relation to AstraZeneca:
  • history of capillary leak syndrome; or
  • thrombosis with thrombocytopenia occurring after a previous dose
• in relation to Comirnaty (Pfizer) or Spikevax (Moderna):
  • myocarditis or pericarditis attributed to a previous dose of either Comirnaty or Spikevax; or
• 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

Exceptional circumstances: emergency situations or critical unforeseen circumstances

Under the Directions, operators of work premises are exempt from complying with both the requirement to collect, record and hold vaccination information; and the requirement to take reasonable steps to prevent entry of unvaccinated workers, if one or more of the exceptional circumstances specified below apply:

• a worker is required to perform work or duties at the facility that is or are necessary to provide for urgent specialist clinical/medical care due to an emergency situation or a critical unforeseen circumstance; or
• a worker is required to fill a vacancy to provide urgent care, to maintain quality of care and/or continue essential operations at the facility due to an emergency situation or a critical unforeseen circumstance (e.g. if a work premises has a large number of workers furloughed due to exposure at a Tier 1 site, or a medical practitioner is required to attend the premises on short notice due to an emergency situation); or
• a worker is required to attend the facility to respond to an emergency at the facility; or
• a worker is required to perform urgent and essential work at the facility to protect the health and safety of workers or members of the public, or to protect assets and infrastructure (e.g. securing a crane due to impending high winds, or where works are required at a construction site in order to make the construction site safe for continued operation).

If any of the last three exceptional circumstances apply, the operator must take all reasonable steps to ensure that the worker remains upon the premises of the facility only for the period of time necessary to respond to the exceptional circumstance.

A critical unforeseen circumstance is defined to mean a circumstance that the operator of a work premises could not reasonably have foreseen nor planned for, which results in a critical need for staff.

An emergency situation means a situation where it is reasonably apparent to the operator of a specified facility that medical treatment is necessary, as a matter of urgency to:

• save a person's life; or
• prevent serious damage to a person's health; or
• prevent a person from suffering or continuing to suffer significant pain or distress

Additional changes for the construction industry

The Victorian Government has also released a construction industry roadmap, along with a press release.

Key changes include that:

• operators in the construction industry will be required to attest that they have implemented the public health directions prior to reopening at 25 per cent capacity on Tuesday 5 October 2021
• every site will need to have an up-to-date vaccination register available for compliance checks at all times
• construction site workers must receive their second dose by 13 November 2021
• fully vaccinated workers can travel between metropolitan Melbourne and regional Victoria in order to work onsite

It is not currently clear whether the requirement for sites to keep an up-to-date vaccination register will be imposed on other employers outside the construction industry.

Watch this space

Working closely with clients in response to COVID-19, we understand the increased strain on internal teams as they navigate the ongoing changes and complexities. Our team is actively monitoring and considering the implications of legal and regulatory developments in response to the COVID-19 pandemic. You can read our COVID-19 collection here.

The specific public health directions underpinning the vaccination mandate for authorised workers have not yet been issued by the Victorian Government, however the relevant press release is available here. We will continue to provide further updates on this issue as new information comes to light.

Authors: Kaitlyn Gulle, Partner and Jessica Miral, Lawyer.