Tips and traps for not-for-profits when implementing mandatory vaccinations

Moores has summarised the key things not-for-profits need to know to make sure they’re ready to comply with the most recent Victorian Health Directions mandating vaccinations in the workplace, taking into account your burning questions and some tricky recurring issues.

The Acting Chief Health Officer has issued new written directions mandating staff working in certain workplaces, participating in specified activities and certain categories of workers to be vaccinated against COVID-19 in order to be permitted to work outside of their home. These directions include:*

• The COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 7) (Facilities Directions) which extend the obligations on operators of residential aged care facilities and construction sites to operators of education and healthcare facilities; and
• The COVID-19 Mandatory Vaccination (Workers) Directions (No 2) (Workers Directions) which impose obligations on employers in respect of vaccination of authorised workers.

(collectively, the Health Directions).

It’s common in the not-for-profit sector for one organisation to be caught by multiple directions, so beware of the trap of some workers being excluded by one direction but caught by another. One example is school bus drivers, who are not caught by the schools mandate in the Facilities Directions but are caught by other directions applying to the transport industry!

The Health Directions require employers to notify affected workers of the requirements as soon as is reasonably practicable. To help you navigate the different dates, here are key dates for the sectors we’ve been supporting in implementing the various Directions.

How do I know if the directions apply to my staff?

We recommend you step through the considerations as follows:

• Consider if your facilities are caught by the Facilities Directions – if so, all staff on site will need to be vaccinated by the deadlines that apply to that type of facility.
• If your facilities are not caught by the Facilities Directions, consider whether your staff are required to be vaccinated under the Workers Directions, noting:
  • You will need to categorise your workers by either facility or work type or both. Some types of workers are defined by reference to the type of facility that they work at (e.g. physical recreation workers), whereas the directions apply to other categories of worker working in any setting outside of their ordinary place of residence (e.g. social and community service workers); and
  • Workers may include employees, contractors and/or volunteers.

Restricted from work

If staff have not been vaccinated by the First Dose Date or have not provided the above information (with supporting evidence) by the Data Collection Date, employers must not permit staff to leave their home to perform work duties. However, if a worker has a booking for their first dose before the First Dose Date, they can continue to attend work until the First Dose Date.

Significant penalties apply if a person or organisation fails to comply with the Health Directions (including up to $21,808 for an individual and $109,044 for an organisation) or if they provide false or misleading information (including up to $10,904 for an individual and $54,522 for an organisation).

What if a staff member is unable to or refuses to be vaccinated?

Limited exceptions are permitted under the Health Directions on specific medical grounds only, or temporarily in the event of an emergency or in the event schools require staff to carry out oral or performance VCE examinations or work as a venue coordinator for those examinations. However, if an exception does not apply, there are many options that employers can consider in the event a staff member refuses to be vaccinated. Employers may consider:

• implementing alternative duties to enable the staff member to work from home;
• permitting the staff member to take leave (paid or unpaid);
• standing the staff member down (under the Fair Work Act 2009 (Cth), and subject to requirements in any applicable enterprise agreement and/or contract of employment); or
• taking disciplinary action against the staff member for failing to follow a direction, including termination of employment.

Employers can minimise the risk of an unfair dismissal, discrimination or general protections claim by putting in clear processes and documenting the decision making process.

Do I need to consult with staff about this change?

In short, the answer is yes! Even though employers are required to comply with the Health Directions, they are required to consult with staff about how those Health Directions are implemented in the workplace to meet their occupational health and safety requirements and consultation requirements under awards or enterprise agreements.

For example, how will you manage the process of assessing whether a staff member has an eligible exception? What will you do if a staff member does not meet the requirements for an exception but is still unable (or unwilling) to be vaccinated? These issues can be addressed in a written policy, and staff should have the opportunity to comment on that policy.

So I need to collect information about my staff. What are my privacy obligations?

Privacy obligations exist mainly under the Privacy Act 1988 (Cth), however, the employee records exemption means the Australian Privacy Principles do not apply to employees. They do continue to apply to contractors, volunteers, and other individuals.

If you are operating in Victoria, there are specific health privacy laws that apply to all health information in addition to the Privacy Act 1988 (Cth).

To better protect individuals’ privacy, and reduce the risks of serious data breaches by your organisation, you may choose to not collect copies of vaccination certificates and instead record that a certificate has been sighted. Consider principles of:

• data minimisation;
• autonomy and individual control over personal information;
• collection limitations; and
• the sensitivity of health information.

What do I need to do next?

Not-for-profit employers need to ensure that they have communicated the vaccination requirements to their staff and confirm the vaccination status of their staff members before the relevant date. The team at Moores can assist you with:

• developing a policy and relevant procedure for implementing the Health Directions;
• working through a consultation process with your staff to get feedback on implementing a major change to their workplace; and
• managing the process of responding to staff members who cannot or refuse to comply with the Health Directions.

How we can help

Both the Facilities Directions and Workers Directions were updated in the last 24 hours. The information above reflects the current directions. There have been changes to some aspects in the Health Directions, such as the list of medical providers who are permitted to provide evidence supporting a medical exception. If you have already acted upon the last versions of the respective Health Directions, we recommend that you review any written directions to staff, including any policies or procedures, to give effect to the revised Health Directions.

Please contact us if you need a helping hand to wade through the murky and contentious world of mandatory vaccinations.

* Specific requirements also apply to patrons and workers in theatres and personal training. See the COVID-19 Vaccinated Activities Directions (No 3) for more information.