As many of you would be aware, the majority of Victorian workers are no longer covered by specific Pandemic Orders relating to mandatory COVID-19 vaccinations. Unless your business operates in the healthcare, aged-care or emergency services areas, it is no longer mandatory for workers to be vaccinated in order to attend the workplace.
But what does this mean for an Employer’s obligation to maintain a safe and healthy workplace?
On 5 July 2022, a new Part 2.1A of the Occupational Health & Safety Regulations 2017 (Vic) (the Regulations) came into effect. These new Regulations authorise employers to collect, record, hold and use COVID-19 vaccination information from ‘specified persons’, in order for that employer to determine reasonably practicable OHS control measures, to exercise their duties under the Occupational Health & Safety Act (OHS Act) and/or the Regulations.
The Occupational Health & Safety Amendment (COVID-19 Vaccination Information) Regulations 2022 (Vic) (the Vaccination Regulations) will be particularly relevant to those employers that are no longer operating subject to vaccination mandates prescribed by Pandemic Orders. Accordingly, the Vaccination Regulations allow employers to collect vaccination information as a reasonably practicable measure to perform a duty under the OHS Act. That is, employers may either continue to record, hold and use vaccination information collected under the Public Health and Wellbeing Act 2008 (Vic) in relation to a specified person, or they may now do so under the new Vaccination Regulations.
A ‘specified person’ refers to:
- an employee of the employer;
- an independent contractor engaged by the employer;
- an employee of an independent contractor engaged by the employer;
- a volunteer or student on placement.
Employers may collect COVID-19 vaccination information from a specified person as follows:
- whether that person has received any vaccination against COVID-19 and when; and
- whether that person is unable to receive a dose (or a further dose) due to a medical contraindication or acute medical illness.
Importantly, any Pandemic Orders will prevail over the Vaccination Regulations where there is any inconsistency between the two. The Vaccination Regulations will remain in force until 12 July 2023. Within 30 days of the expiry of the Vaccination Regulations, employers must destroy any COVID-19 vaccination information recorded or held.
Employers who choose to implement mandatory COVID-19 vaccination policies in their workplace can now rely on the Vaccination Regulations. This provides comfort to employers when deciding on the most effective OHS measures to implement in their workplace. It is important to note that the Vaccination Regulations do not mandate vaccinations for workers (like the Pandemic Orders did). However, they assist employers to ensure they have the relevant information they need to make decisions regarding OHS control measures in their workplace (i.e. implementing various measures to control the risks to health and safety associated with COVID-19 in the workplace, which may include vaccination).
If you require assistance with navigating your occupational health and safety obligations as an employer, particularly when it comes to the ongoing risk of COVID-19, please contact our Employment Law team for further advice.
Senior Associate, Workplace Relations/Employment Law