Over the last week, both NSW and Victoria have implemented a number of public health orders and directions dealing with return to work, vaccines, and collecting vaccine information.
New South Wales
New rules came into force in NSW from 11 October 2021 regarding employees returning to work.
The general position is set out immediately below, however, there are several industries that have specific rules in place (hospitality, retail, etc) as explained later in this article.
Fully vaccinated employees are now allowed to return to the physical workplace, however, until 1 December 2021, they must be permitted to work from home if they wish to unless it is not reasonably practicable for them to work from home.
An example of an employee where it might be reasonably practicable to work from home might be an employee who usually works from an office, who can carry out their work adequately from a home office set-up. Such an employee would be allowed to work from home if they wished to (until 1 December 2021 where – under current plans – an employer would have a greater ability to direct them to return to the physical workplace).
An example of an employee where it would not be reasonably practicable for them to work from home would be someone who ordinarily works from a factory. From 11 October, if they are fully vaccinated, they can be directed to return to physically return to work.
Unvaccinated employees must not be allowed to return to the physical workplace unless it is not reasonably practicable for them to work from home. Where unvaccinated employees cannot reasonably work from home, then the public health orders no longer prohibit employees from returning to the workplace.
So using the above examples again, an unvaccinated office employee (who can perform their work from home) must not be allowed to return to the work office space. However, it would not offend a public health order for an unvaccinated factory worker (who cannot reasonably perform their work from home) to now return to the factory.
Masks must be worn in office buildings until NSW reaches an 80% vaccination rate (unvaccinated persons must continue to wear masks even at this point).
This is not to say that businesses cannot have stricter rules (for example, keeping premises closed and requiring employees to keep working from home for longer or not allowing any employee to return to work unless they have been fully vaccinated, etc). However, the ability for employers to do this will very much depend on their individual circumstances. Particularly where an employer is considering implementing a mandatory vaccine program we would recommend seeking further advice from us.
We have also provided links to further useful resources at the end of this article, including our guidance on mandatory vaccines.
Special Rules in Certain Industries
For certain industries, more stringent rules apply, whereby the controllers (“occupiers”) of premises where certain activities are being performed must not allow unvaccinated persons (including employees) to enter the premises (subject to certain limited exceptions, such as where the employee has a medical exemption). This includes the following facilities:
- Entertainment facilities;
- Major recreation facilities;
- Hospitality venues;
- Places of public worship;
- Any premises where a wedding, funeral, or memorial service (other than small services with 10 or fewer people) or gathering following those services is being held;
- Hairdressers, spas, nail salons, beauty salons, waxing salons, tanning salons, tattoo parlours or massage parlours;
- Indoor recreation facilities;
- Public swimming pools;
- Information and education facilities;
- Retail premises (other than critical retail premises such as supermarkets and pharmacies);
- Auction houses;
- Betting agencies;
- Gaming lounges;
- Markets that do not predominantly sell food;
- Properties are operated by the National Trust or the Historic Houses Trust.
The rules vary depending on whether employees live in Greater Sydney or regional/rural NSW. In Greater Sydney employees must be fully vaccinated by 11 October 2021.
In regional/ rural NSW, employees must have had at least one dose of a vaccine by 11 October 2021 and be fully vaccinated by 1 November 2021.
On 7 October 2021, the Victorian Government passed the ‘COVID-19 Mandatory Vaccination (Workers) Directions’ (‘the Directions’) which imposes obligations on a wide range of employers with respect to, firstly, collecting, recording, and holding vaccination information, and secondly, ensuring that unvaccinated workers do not perform work away from their home (subject to limited exceptions).
The Directions currently last until 21 October 2021, at which date they may be amended, extended, or removed.
Who do these requirements apply to?
The Directions apply to the following categories of workers:
- accommodation workers;
- agricultural and forestry workers;
- airport workers;
- ancillary, support, and welfare workers;
- Authorized Officers (including environmental health officers and officers appointed by Councils to enforce local laws and other legislation);
- care workers;
- community workers;
- creative arts workers
- custodial workers;
- emergency service workers;
- entertainment and function workers
- funeral workers;
- higher education workers;
- justice service centre workers
- manufacturing workers;
- marriage celebrants;
- meat and seafood processing workers
- media and film production workers;
- mining workers;
- physical recreation workers;
- port or freight workers;
- production and distribution workers;
- professional sports, high-performance sports or racing people
- professional services workers;
- public sector employees
- real estate workers
- religious workers
- repair and maintenance workers;
- retail workers;
- science and technology workers;
- social and community service workers;
- transport workers;
- utility and urban workers;
- veterinary and pet/animal care workers.
The Directions do not differentiate based on the location of the work: all workers listed in the above categories are covered, meaning a “repair or maintenance worker” would be covered regardless of whether they were performing their work in someone’s home, in a shop, in a factory, etc.
From 7 October, employers who have not already done so are required to collect, record and hold vaccination information about any worker who is likely to be required to leave their homes to work on or after 15 October 2021.
Specifically, this includes:
- information regarding the vaccination status of each worker (i.e. are they fully vaccinated, partially vaccinated or unvaccinated);
- information regarding any medical reason for why they may be unable to be vaccinated (i.e. certification from a medical practitioner); and
- booking information for unvaccinated and partially vaccinated workers. Specifically:
- If the worker is unvaccinated, whether that worker is booked in to receive their first dose by 22 October 2021.
- If the worker is partially vaccinated, whether that worker is booked in to receive their second dose by 26 November 2021.
The Directions note that if employers do not hold vaccination information about a worker, the worker is considered unvaccinated.
Restricting Work Away from Home
After 15 October 2021 employers must not permit an unvaccinated worker to perform work outside of their ordinary place of residence unless an exception applies. The exceptions are as follows:
- workers who are able to present evidence from a medical practitioner that they are unable to receive a dose of COVID-19 vaccination due to a specified medical contraindication, or because of an acute medical illness (including where they have been diagnosed with COVID-19);
- workers who have made a booking to receive a first COVID-19 vaccination by 22 October 2021;
- workers who were unable to be vaccinated as they were in self-quarantine as a diagnosed person or close contact may leave home to work after 15 October 2021 if they have a booking to be vaccinated within 7 days of the end of their quarantine period;
- workers who are required to leave home to work to respond to emergencies, and unforeseen circumstances which give rise to a critical need for staff.
Workers will also need to have had their second dose by 26 November 2021.
The Directions also require employers to notify all existing workers who may be required to perform work on-site on or after 15 October 2021 that they are obligated to collect, record and hold vaccination information, and, unless there is an exception which applies, not to permit them to work on-site on or after 15 October if they are unvaccinated. If you require a template letter for this purpose, please contact us.
The new Directions do not override previous public health directions which apply to other industries. For example, there are already rules preventing unvaccinated persons from going to workplaces (subject to limited exceptions) in the following areas:
- Residential Aged Care Facilities (restriction applied from 30 September);
- Construction Sites (restriction applied from 30 September)
- Health Care Facilities (restriction applies from 15 October);
- Education Facilities (restriction applies from 18 October).
Many employers will still be grappling with the question of introducing a mandatory vaccine program for a wider group of employees that are covered by the recent public health directions. If you require further assistance in this area please contact us.
About Employment Innovations
Employment Innovations is one of Australia’s leading providers of employment services designed to increase productivity and ensure compliance. Its services and solutions include all the tools that every Australian small to medium sized employer needs – including workplace advice, legal services, payroll solutions, migration, human resource management and HR software.
The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.