In Australia, Victoria Introduces Sweeping Worker Vaccination Mandate

​A new government mandate in Victoria, Australia, requires workers on an expansive authorized worker list to receive COVID-19 vaccinations if they want to do their jobs onsite rather than working remotely.

Those performing work essential to grocery stores, banks, public transportation, agriculture, health care, postal services, pharmacies, emergency services, gas stations and the police, among numerous other areas, must be vaccinated.

Under these new mandatory vaccination directions for workers in Victoria, authorized workers had to take their first vaccine dose by Oct. 15 or have a booking to receive it by Oct. 22, unless they provided evidence of a medical exemption. They must receive the second dose by Nov. 26 to attend work.

The list is extensive and covers almost all employees in the state, including those who work in health care, emergency services, education, construction, mining, manufacturing, hospitality, sports and media, and transportation, and even judges and lawyers, noted Michael Tooma, an attorney with Clyde & Co. in Sydney.

'Incredibly Broad' Scope

Kelly Dickson, an attorney with Macpherson Kelley in Dandenong, Australia, said that the "incredibly broad" definition of a worker covered by the mandate encompasses both paid and unpaid individuals. "Significantly, it does not capture those who can still, and will, work entirely 'remotely' from home," she stated.

The rules define employers as someone who employs or engages people for work, including volunteers, contractors and "students on placement" in jobs.  Workers who were already subject to industry-specific vaccination requirements must maintain compliance with those mandates, according to legal experts.

Victoria's mandate follows a similar strategy in New South Wales (NSW), which reached its 80-percent fully vaccinated target as a result, Tooma said. The NSW government mandated vaccination for certain industries and workers from 12 local government areas deemed of concern because of high community transmission rates, he explained.

 "Victoria has taken that strategy and put it on steroids. It has mandated vaccination across almost workers in all sectors. The early evidence seems to indicate that this strategy has worked in that Victoria's vaccination rates have increased dramatically. Victoria is likely to open up earlier than anticipated as a result," Tooma said.

On Oct. 26, the state's coronavirus website reported that 91.6 percent of eligible Victorians ages 16 and older had received their first dose and 75.4 percent were fully vaccinated. The state is under an extended state of emergency until Nov. 18 due to the COVID-19 health threat.

"This move is very significant for most employers due to the extensive list of workers affected," Dickson said.

Prior to the new mandate, many employers faced a difficult choice about how, when or whether to voluntarily impose a vaccine mandate on their workers, she noted.  Now the choice has largely been made for them in relation to the workers covered, at least in Victoria, Dickson said.

Employer Obligations

Organizations risk financial penalties up to $110,000 for failing to comply with their obligations under the worker vaccination mandate, Dickson said. Businesses also could face significant liability, including the risk of class actions, should an outbreak arise from their workplace, according to Tooma.

Dickson said that employers covered by the mandate are obligated to:

• Collect, record and hold certain vaccination information on employees who work, or are expected to work, outside their homes.
• Enforce the rules by not permitting unvaccinated workers to perform work for the employer anywhere outside their residences.  If an employer doesn't keep vaccination information about a worker, the employer must treat the worker as if they are unvaccinated, with certain limited exceptions.
• Inform each affected worker of the employer's obligations to collect, record and keep vaccination information, and to keep unvaccinated workers from onsite work, unless an exception applies.
• Comply with privacy protection laws that govern how employers collect, use, share, disclose, store and destroy the vaccination information held about workers. Employers must provide workers with information about what personal health information is being collected, the reasons, how it may be shared and the consequences for not providing it.

Practically speaking, employers can meet their notification and privacy obligations by providing detailed written information to workers when seeking their vaccination information, Dickson said.

What If Workers Refuse Vaccination?

Employers will need to determine how to respond if workers refuse to be vaccinated or to disclose their status, she said. "There's a huge amount of uncertainty about how to deal with this at a practical level," Dickson said.

There are a range of ways the employer may address such a situation, including adjusting the worker's role if possible, agreeing to a period of leave, terminating the worker's employment or engagement, or making a reasonable direction to the employee, she said. "The most likely risk for employers would be claims for unfair dismissal or discrimination," she added.

Dinah Wisenberg Brin is a freelance writer based in Philadelphia.