Despite the increasing rates of COVID-19 vaccination across Australia, issues surrounding the COVID-19 vaccine and the workplace remain at the forefront of conversation; particularly given the mandating of vaccines within some industries and states. 

Authored by Holman Webb Lawyers Workplace Relations Partner Alicia Mataere and Associate Lee Pike, this guide is designed to walk you through the issues relating to COVID-19 vaccines and the workplace, to assist in your understanding of whether the vaccine is mandatory for your workplace, and if not, to help you decide whether you can/should make vaccines mandatory within your workplace.

Specifically:

• Industry-specific requirements
• Compulsory vaccination in each State and Territory
• Should you request proof of employee’s vaccination status?
• Can employers mandate vaccinations?

Industry-specific requirements

State and territory governments have made, and are making public health orders requiring that certain workers within specified industries be vaccinated against COVID-19.  Accordingly, employers and workers need to comply with those applicable public health orders and ensure that staff are also complying. 

Click below for industry-specific guidance relating to the following industries:

• Aged Care Industry
• Education and Care Industry
• Building and Construction Industry
• Transport Industry

Compulsory vaccination 

Please refer to the vaccination rules for your state/territory or industry to ensure your compliance with COVID-19 restrictions.

New South Wales

The NSW Government has introduced COVID-19 vaccination requirements for certain workers, including:

• COVID-19 quarantine workers, airport workers and workers providing transport for quarantining persons, quarantine and airport workers;
• Residential aged care facility workers;
• In-home and community aged care workers;
• Persons providing disability support services; 
• Certain health care workers; 
• Education and care workers, including teachers and education providers from 8 November 2021; and
• Other workers who are allowed to attend their place of work.

Certain workers in Greater Sydney have required vaccination against COVID-19 since 11 October 2021, when eligible businesses began to reopen.  Such businesses included entertainment and recreational facilities, hospitality venues, retail premises, hairdressers and beauty salons, places of worship and both wedding and funeral venues.

Currently, Greater Sydney employees in these industries and workplaces cannot attend work unless they are fully vaccinated.  Workers living in Regional and Rural NSW can continue to attend their workplaces provided they have received one dose of the vaccination – and that they are fully vaccinated by 1 November 2021.

In line with the NSW Roadmap, it is anticipated that from 15 December 2021, or when vaccination rates reach 95%, there will be no further restrictions on unvaccinated persons. This is likely to mean that unvaccinated workers will be able to enter the workforce, subject to any restrictions within their industry or the workplace itself.

Victoria

The Victorian Government has introduced COVID-19 vaccination requirements for certain workers.  These requirements apply to:

• Residential aged care facility workers;
• Construction site workers;
• Health care workers;
• Education workers;
• Certain commercial freight and health care workers entering Victoria;
• Other specified workers unable to work from home; and
• Any person working at an open premises.

Since 15 October 2021, select workers in Victoria have been required to be vaccinated in order to leave their homes for work. The list of industries and workplaces is extensive and includes accommodation, agriculture, airport, emergency services, entertainment and functions, wedding and funeral workers, meat processing, professional services, retail and transport workers.

Employees in these industries and workplaces cannot currently attend work unless they are fully vaccinated.

Australian Capital Territory

The ACT Government has issued public health directions mandating vaccinations for:

• Residential aged care facility workers;
• ACT school, early childhood education and care facility workers; and
• Hospital, hospice, Canberra Health Services facility and patient transport workers.

Workers who enter these facilities for their work must have received at least one COVID-19 vaccination dose by 29 October.

Queensland

The Queensland Government has introduced COVID-19 vaccination requirements for certain workers:

• Health service employees;
• Queensland Ambulance Service employees;
• Hospital and health service contractors;
• Residential aged care facility workers;
• Workers in quarantine facilities;
• Certain workers with permission to cross into Queensland from New South Wales; and
• Freight or logistic workers entering Queensland from another State or Territory.

South Australia

The South Australian Government has introduced COVID-19 vaccination requirements for certain workers. The requirements apply to:

• Workers within the South Australian quarantine system (including in airports, medi-hotels, health-care settings and transportation);
• Workers in residential aged care facilities;
• Some ‘essential travellers’ arriving into South Australia;
• Workers on certain commercial vessels arriving into South Australia; and
• Workers in healthcare settings from 1 November 2021.

Western Australia

The Western Australian Government has issued a new mandatory COVID-19 vaccination policy for WA workforces which expands on the current mandating of vaccination for certain industries, including hotel quarantine staff, healthcare and support workers, mission-critical police staff, port workers, freight and logistics workers, resources workers and primary and community health workers.

The expansion will capture a broader range of industries and workplaces, estimated to cover up to 75% of the entire Western Australian workforce through a phased approach, including:

• Workers in industries determined as high-risk environments (including cross-border freight workers, primary and community health workers, fly-in fly-out (FIFO) workers, onsite regional and mission critical mining/resources sector workers, border and air transport workers, and corrective services) will need to have their first dose by 1 December 2021, and be fully vaccinated by 31 December 2021; and
• Workers in industries and workforces deemed ‘necessary’ in the delivery of critical services - including retail, hospitality, child care, schools, public transport, and building, maintenance or construction services must have their first dose by 31 December 2021 and be fully vaccinated by 31 January 2022.

Tasmania

The Tasmanian Government has introduced COVID-19 vaccination requirements for certain workers, including those:

• Entering a residential aged care facility; 
• Entering a Tasmanian quarantine site; 
• Providing quarantine transport services; 
• Entering a medical or health facility from 31 October 2021; and those
• Providing health and medical services or treatments from 31 October 2021.

Northern Territory

The Northern Territory Government has introduced COVID-19 vaccination requirements for certain workers, including:

• Residential aged care facility workers;
• Quarantine workers;
• Workers in other high-risk sectors, including education and childcare, retail and customer-facing roles and persons working with vulnerable groups or individuals; and
• Freight workers entering the Northern Territory from 1 November 2021.

Can employees attend work if they are not fully vaccinated?

If vaccination has been mandated under a public health order (i.e. it is compulsory within your industry), unvaccinated employees should not attend work.  It is the responsibility of the employer to take reasonable steps to prevent unvaccinated workers from entering the premises beyond the date stipulated within the public health order of the relevant state or territory government.

Additionally, where vaccination is compulsory, employers should ensure that they have either seen, or received a copy of evidence from each worker to show that the worker has been vaccinated, and record the details including dates of vaccination so you will be able to monitor any booster shot requirements.

Should you request proof of employee’s vaccination status?

If vaccinations are mandated within your industry, it is the employer’s responsibility to collect evidence of each individual worker’s vaccination status. In these circumstances, an employer or occupier of the premises may ask for proof of vaccination, and can refuse that person entry into the workplace, or refuse to allow an employee to commence work if they fail to produce appropriate evidence.

Appropriate proof of vaccination includes:

• Online Immunisation History Statement;
• COVID-19 digital certificate via the relevant State app (e.g. Service NSW and Service Victoria);
• COVID-19 digital certificate via the Australian Immunisation Register; or
• Medical contraindication certificate.

An exemption to the Public Health Order requirement will only be considered if a worker is unable to be vaccinated against COVID-19 for a medical reason.

Individuals will only be granted an exemption if they have a medical contraindication to all of the available COVID-19 vaccines, or where they have another medical reason for a temporary exemption.  Please note that most states and territories have specified medical contraindication certificates, so a standard medical certificate is not sufficient.

If vaccinations are not compulsory in your industry, employers will need to consider the reason that they are requesting information regarding their employees’ vaccination status, or their proof of vaccination.

Given that employers have a duty to ensure a safe workplace, it is likely that a request that workers provide their vaccination status will be a considered a reasonable and lawful direction to employees. Employers should request the vaccination status of their workers as part of their obligation to manage the risk of COVID-19 in their workplace.

However, if an employee refuses to provide this information, employers should consider obtaining legal advice before taking disciplinary action.

What is ‘vaccination contraindication’?

Contraindications are conditions that increase an individual’s risk of having a serious adverse reaction to a vaccination, and under which vaccines cannot be administered.

Evidence of an employee’s medical exemption must be from a medical practitioner, and in the form approved, which in NSW is published by the NSW Chief Health Officer.  Employees will need to speak to their medical practitioner and ask them to complete a COVID-19 medical contraindication form.

Storing employee vaccination information

The Australian Privacy Principles do not apply to the collection of information for an employee record where it relates directly to the employment relationship. This includes collecting employee information in relation to their vaccination status.

Nonetheless, employers should take care in ensuring confidentiality and security of employee health information, including whether or not they have received the COVID-19 vaccine.  With the availability of booster shots, employers will need to ensure the accuracy of information recorded, noting in particular the date upon which the booster shot may be needed.

Employers should note that the employee records exemption in the Australian Privacy Principles mentioned above does not apply to prospective employees, contractors, sub-contractors or volunteers.  As such, employers may need to comply with the Australian Privacy Principles when dealing with the personal information of these individuals.

Can employers mandate vaccinations?

Where vaccination is not mandated by a public health order, as part of their safety obligation to manage the risk of COVID-19 in the workplace, employers may require workers to be fully vaccinated before returning to work, where that requirement would be a lawful and reasonable to do so.

In this regard, employers have a duty under the model Work Health and Safety (WHS) laws to provide employees with a safe workplace, which extends to the elimination and/or minimisation of the risks of COVID-19 in the workplace, so far as is reasonably practicable. Further, should workers contract COVID-19 in the workplace, it may create liability for employers with regard to workers compensation.

The exposure of your workers, customers and/or clients to COVID-19 is a foreseeable risk that must be assessed and managed within your business.  A position-specific risk assessment will assist you to:

• Identify the workers who are at risk of exposure;
• Determine what sources and processes are causing the risk
  • E.g. whether a role is client-facing, or workers are required to work in an enclosed space which increases the risk of transmission;
• Identify if (and what kind of) control measures should be implemented to minimise or eliminate the risk; and
• Assess whether or not the existing control measures are sufficiently effective in minimising or eliminating the risk.

Where it can be established through a risk assessment that the business has implemented a number of safety measures to reduce the risk of workers contracting and/or transmitting COVID-19, however due to the nature of the services and work performed by the business and its workers, there are no alternative measures to vaccination that can be reasonably implemented to reduce the risk of contraction and/or transmission of COVID-19, it may be a reasonably practicable measure for an employer to require that employees obtain the vaccination.

Employers also have a duty to consult with workers with regard to relevant COVID-19 risks, and how those risks are to be managed. This may include the introduction of workplace policies relating to vaccination where a workplace has assessed this to be a reasonably practicable control measure to manage the risks of COVID-19.

Should you have questions in relation to completing a risk assessment, or assessing whether mandatory vaccination is suitable for your workplace, consultation obligation or vaccination policies, reach out to Workplace Relations Partner Alicia Mataere, or Associate Lee Pike for assistance today.