The Victorian Vaccine Mandate, announced on 1/10/2021, has been in place for some time and the Premier has announced that it is likely to remain a key feature for all of 2022.  Significant changes to the definition of Fully Vaccinated and the need to track and verify booster doses now applies.  This weeks HR Highlight will explore the mandate, the requirements for businesses and the broader context of Exposure Response changes as well as a practical Q & A in light of the long term nature of this mandate.

New Public Health Order

As ACAPMA covered over the past four months, like most Public Health Orders, the Vaccine Mandate has changed and evolved over time.

At 00:01 13/1/2022 the new Order came into effect and represents a significant change.

Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No.2)

https://www.health.vic.gov.au/sites/default/files/2022-01/pandemic-covid-19-mandatory-vaccination-specified-workers-order-no-2-pdf.pdf

Critical Elements and New Definitions

With the implementation of the new Order there has been a change to the definition of Fully Vaccinated.  A worker that is subject to the Order is now considered Fully Vaccinated once they have received two primary doses and a booster.

        Dose One + Dose Two + Booster = FULLY VACCINATED

The Order also introduces a new concept for establishing when an employee is no longer allowed to be at work, when the need for the employee to be Fully Vaccinated kicks in….the Booster Deadline.

The Booster Deadline that will apply to the particular employee/industry is outlined in Schedule 1 of the Order.  An example of one Booster Deadline is;  “For workers that became fully vaccinated on or before 12 September 2021, the deadline is 12 February 2022. For workers that became fully vaccinated after 12 September 2021, the deadline is 12 March 2022”

            Column 2, Schedule 1 = BOOSTER DEADLINE

These changes are significant and, unlike

Key Question:  Does the Booster Deadline apply to Fuel Wholesale or Fuel Retail Staff?

At this point the answer is no…but the changes that were announced recently to the close contact exposure exemptions, and the National Cabinet and AHPPC outcomes of today mean that it is HIGHLY LIKLEY that fuel transport will be subject to the Booster Deadline and it is likely that Fuel Retail Staff will also be captured as essential retail.

ACAPMA is consulting with the Government closely as these situations change and those changes flow through the process to becoming Orders.

The Order as it stands now is explored below for Members reference.

Requirements for business operators

The new Public Health Order places requirements on the business;

  1. Requirement to notify workers of the impact of the Mandate on them
  2. Requirement to understand booster deadline
  3. Requirement to collect , record and hold information on worker vaccination status
  4. Requirements to ensure that a worker is not allowed to work (outside of the home) unless they are Fully Vaccinated or Exempt
  5. Requirement to provide vaccination status information to authorities on request

We will explore each of these items below.

Requirement to notify workers of the impact of the Mandate on them

As per 14.1  the business is required to “as soon as reasonably practicable after the commencement of this Order” inform employees of the obligation on the business to collect information, and the requirements for employees to be Fully Vaccinated by their Booster Deadline.

Sample Communication Letter

Dear [name],

As you are aware changes to the VIC Government have been made that now require impacted staff to have a Booster dose of vaccine in order to be considered Fully Vaccinated.

The mandate, that is made law through Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No.2)

https://www.health.vic.gov.au/sites/default/files/2022-01/pandemic-covid-19-mandatory-vaccination-specified-workers-order-no-2-pdf.pdf , states that all impacted staff will need to have provided evidence of having received their Booster Dose by the applicable Booster Deadline in order to be allowed onto site following that date.

As a ___[job role]____ this change to the mandate applies  to your work __[work category]___ see Schedule 1, Point [number]___.

As per Schedule 1, Point __[number]__ the applicable Booster Deadline is __[Booster Deadline from column 2 of Schedule 1]___.

The mandate is a law that has been put in place by the Government and it is a requirement of the law that the business ensure that no impacted staff are allowed at work if they are not Fully Vaccinated after their applicable Booster Deadline.

As is required by clause 14 of the Order this letter includes the following required notification that “a) clause 7 obliges the employer to collect, record and hold vaccination information about the worker; and b) clause 10(1) obliges the employer not to permit a worker to work for that employer outside the worker’s ordinary place of residence unless the worker is fully vaccinated or an excepted person; and c) if a booster deadline is specified in relation to a workers, clause 10(2) obliges the employer to not permit the worker to work for that employer outside of the worker’s ordinary place or residence unless the worker is fully vaccinated (boosted) or an excepted person”

We understand that these changes are happening quickly and that they can be hard to follow.

Please urgently provide evidence of your COVID-19 vaccination status (vaccine certificate/proof of vaccination) and/or Booster Vaccination booking or exemption to __[site manager/line manager]__.  The details (date of Booster/exemption, viewed by name, date viewed) will be added to the businesses Vaccination Register.

Given that the vaccination requirement is law you would not be allowed onsite after the applicable Booster Deadline unless you comply with the Order and provide this evidence.  Providing required evidence to the business that you have had received at a Booster dose where required or have an approved medical contraindication.  If you are legally unable to be at the workplace to undertake your work your employment will be untenable due to inability to meet the inherent physical requirements of the role and you will be asked to show cause as to why your employment should not be terminated for same.

Kindest Regards

Requirement to understand booster deadline

There is a requirement for the business to understand the booster deadline for all staff and to collect vaccination information and to ensure that it is not allowing workers who are not Fully Vaccinated to work past their Booster Deadline.

Requirement to collect , record and hold information on worker vaccination status

As per 7.1 the business must “collect, record and hold the following information about the worker; a) the workers vaccination status; and b) if the worker is fully vaccinated – the date on which the person became fully vaccinated” and as per 7.2 the business must establish if the worker has a booster deadline and if so ensure that the record of booster “fully vaccinated” is captured and the employee is not allowed to work after that deadline.

As per 10.3 if the business is unable to collect information about vaccination or exemption the business must be treated as unvaccinated for the purposes of the Mandate

For examples of the recording see Vaccination Registers below.

Requirements to ensure that a worker is not allowed to work (outside of the home) unless they are Fully Vaccinated or Exempt

Penalties apply to businesses that breach the requirements including fines of $54,522 per offence.

Valid Exemptions

Exemptions apply where the employee has been issued a compliant exemption.

In line with the changes announced 28/10/2021 requiring all Exemptions to be in a new and specific format, all fuel transport, admin and retail operators are reminded to review their Vaccine Registers and to seek the updated Australian Immunisation Register Medical Exemption Form from any staff that are listed on the Register as having presented an exemption prior to 28/10/2021.

It is also important to note that as per clause 12 if an employee misses their Booster Deadline due to isolating, they are able to work provided they have a booking for a Booster within a week of ending their isolation.

Vaccination Registers

Businesses are required to collect Vaccination Information for workers attending site.  This means that the business needs to sight the information (at least) and keep a record of that.

  • Simple Sight Register of Staff Vaccination – One approach to meeting this requirement that works for staff is to create a simple spreadsheet that tracks the relevant information;  Staff Name, what evidence of vaccination/booking/exemption was viewed, who viewed it and on what date.  This can be completed onsite by hand or via a detailed spreadsheet for larger groups of staff.  ACAPMA has distributed to Members a simple tool that is formatted to allow printing and completing onsite, and includes a matrix and simple logic for setting up a more detailed database.  This meets the requirements for the Mandate information gathering and serves as a Go/NoGo tool
  • Simple Sight Register of Contractors/Site Visitor Vaccination – Contractors and site visitors already sign into the workplace – there is a simple option of adding a column to the sign in sheet  that tracks the relevant information;  Staff Name, what evidence of vaccination/booking/exemption was viewed, who viewed it and on what date. ACAPMA has distributed to Members a simple tool that is formatted to allow printing and completing onsite, and includes a matrix and simple logic for setting up a more detailed database.  This meets the requirements for the Mandate information gathering.  It is noted that the employer of the contractor is the one that is responsible for ensuring that the employee is vaccinated from a mandate perspective, however the site will be asked to show why they did not have a system for ensuring contractors were not a risk to staff under the safety laws, so this approach satisfies that element
  • Global System Verification of Contractor/Visitor Vaccination – The business can proactively request that its suppliers confirm that all contractors that will be sent to their site will be in compliance with the vaccine mandate.  Some businesses will seek that themselves when the worker arrives (like the contractor process outlined above) others may seek to streamline the contractor process by contacting the business directly to get an indication of the status of staff at a global level.  In this case a global response would be appropriate such as;  “Thank you for your enquiry regarding the vaccination status of our employees that attend your site as part of their work duties.  This letter includes information of the process the business has implemented to ensure compliance with the Victorian Vaccination for Authorised Workers Mandate and current status.  The business has implemented a review to ensure compliance with the vaccine mandate for all workers.  All workers have been asked to display to the business evidence of either their fully vaccinated (boosted) status or a medical exemption.  The business has recorded the evidence displayed, who it was displayed to and when it was displayed.  The business will repeat this display process in line with employee Booster Deadlines.  In accordance with the legal requirements any staff that have been unable or unwilling to display this evidence by these deadlines will not be rostered to work at the business sites or at and partner or client sites.  Any staff that do attend partner/client sites will have their evidence of vaccination/booking/exemption with them and will display these to partner/client staff on request.  If you have any questions about this process please do not hesitate to contact us”

Mandatory Vaccination Q & A

  • Q:  Does the business need to keep a copy of the vaccination? – No.  As outlined above and in 7.1-7.2 of the Order, the business needs to implement a mechanism to ensure that it is ensuring that it is not allowing unvaccinated workers onsite (other than  with an exemption).  To do that the business needs to view the vaccination/exemption status, but does not need to keep a copy of it – this is why it is very important to record who viewed the evidence and what they viewed.
  • Q:  Can the business keep a copy of the vaccination evidence? – Yes.  But it should be kept as an employment document and the privacy of same protected.
  • Q:  Can the business provide vaccination evidence to partners/clients on their request or proactively? – Yes, but privacy will need to be respected.  If the business is going to provide the evidence to a third party (eg another business that the worker does work at) personal information should be redacted.  This would mean at the least redacting the personal health identifier, but could arguably extend to the Date of Birth, Type of Vaccine Provided, Actual Contraindication on Exemption.  What third parties need to know when a worker is going to do work on their site is if the worker is allowed to do work – so they need to know the status not the details.
  • Q:  Does the vaccine mandate apply to brand group sales reps coming to site? – Absolutely!!!  The requirement for the mandate is very simple and very clear (rare in these confused times).  Persons doing work on a fuel retail site are covered by the Mandate and the business will need to ensure that they are actively ensuring that they are not allowing unvaccinated workers onto site.  State wide!
  • Q:  Are there penalties for the worker if they lie about vaccine status? – Yes.  If a worker provides false or misleading information about the vaccination status they can be fined up to $10,904.40.
  • Q:  Are there penalties for a business if they allow an worker onsite without evidence of vaccination/exemption? – Yes.  If the business allows a worker onsite without the required evidence fine of $54,522 per instance would apply.
  • Q:  Our staff are claiming that it is against the Equal Opportunity Act to be mandated a vaccine…is it? – According to the VIC Government and the Victorian Equal Opportunity & Human Rights Commission it is not – see; https://www.humanrights.vic.gov.au/resources/explainer-mandatory-covid-19-vaccinations-and-your-rights/
  • Q:  We are recruiting, can we put “must be fully vaccinated (boosted) or exempt” on the Job Ad? – Yes…BUT ONLY IN VIC!!!!!  The VIC mandate means that it is illegal for a business to allow an Authorised Worker onto site without the vaccination/booking/exemption, so it is reasonable and appropriate to include this vital element and inherent requirement in the job ad.  EVERYWHERE ELSE THIS IS SOMETHING TO BE VERY CAREFUL OF.
  • Q:  Will the vaccination mandate end?  – No.  The Premier has outlined that the vaccinated economy structure, of which the vaccination mandate is a major part, will be around “at least until the end of 2022” .

Here to Help

HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general information for you to consider and do not constitute advice.  You should seek further advice on your situation by contacting your legal advisor.  ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au  , it is free for members.  ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/   for more information.

Elisha Radwanowski BCom(HRM&IR)

ACAPMA

 

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