NSW Department of Premier and Cabinet logo

Department of Premier and Cabinet

Type:
Department of Premier and Cabinet Circular
Identifier:
C2021-16
Status:
Active

C2021-16 Guidance for Government Sector Agencies regarding COVID-19 Vaccinations for their Employees

Description

This Circular provides guidance to agencies to assist them in determining if their employees should be directed to be vaccinated against COVID-19.

Function and Subject

Industrial Relations (1)
Conditions of Employment

Detailed Outline

As employers, NSW Government agencies are responsible for keeping all employees safe.

For the safety of employees and all citizens who interact with employees, the NSW Government expects all government sector employees who can be safely vaccinated, to do so at the earliest opportunity.

Agencies, as employers, have the power to give a direction to employees to be vaccinated (and provide proof of vaccination) against COVID-19 if the direction is:

  • lawful;

  • reasonable;

  • within the scope or subject matter of the employee’s employment; and

  • provided following a risk based assessment.

The threshold for whether a direction will satisfy all four of the above criteria is high. Agencies must follow the guidance below to determine whether a direction can be provided.

1. The direction must be lawful

Agencies must consider whether the direction is prohibited under legislation, industrial instruments and contracts of employment.

A direction must not discriminate against an employee, either directly or indirectly, on any basis, including on the basis of:

  • disability e.g. a person with a medical contraindication to receiving a vaccine as certified by a treating medical practitioner;

  • sex e.g. an employee who is pregnant and unable to be vaccinated (if that is the case); or

  • race or age e.g. if vaccinations were only mandated for at risk employees as defined by reference to their race or age.

If a direction is discriminatory, there is a risk that it could be unlawful under the Anti-Discrimination Act 1977 (NSW), Commonwealth anti-discrimination laws or the Fair Work Act 2009 (Cth). Where the Fair Work Act 2009 (Cth) applies, there may be additional relevant grounds of discrimination, such as religion or pollical opinion.

2. The direction must be reasonable

Agencies must also consider whether it is reasonable. This depends on the risks of exposure and transmission of COVID-19 in the particular workplace.

A direction that an employee is to be vaccinated (and provide proof of vaccination) is more likely to be reasonable if, for example:

  • The employee occupies a role that requires vaccination in order to perform their duties.

  • There is a higher risk that employees will be exposed to the virus (e.g. quarantine workers or other employee groups who work in high risk settings or where social distancing is not always possible).

  • The employee works with at risk populations (e.g. healthcare workers or other employee groups who work with at risk populations).

  • PPE and other control measures, in the given circumstances, are inadequate to sufficiently protect people.

Other circumstances that agencies may consider when assessing whether it is reasonable to issue a direction that employees be vaccinated (and provide proof of vaccination) for non-frontline employees include:

  • Whether the workplace is 'open plan' and whether employees are able to maintain an appropriate level of physical distance from other employees.

  • The number of employees in a specific workplace.

  • Whether employees have contact with the general public.

Government sector agencies must comply with the information protection principles and the health privacy principles under the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 in relation to the collection, retention, use and disclosure of information in relation to employees’ vaccination status.

The collection of information in order to manage risks to the health and safety of workers and other persons would likely be permitted under those Acts.

3. The direction must be within the scope or subject matter of the employees’ employment

The direction must be sufficiently connected with the employees’ employment.

4. Risk Assessment to be completed prior to mandating vaccination in the workplace

Agencies must perform a risk assessment prior to giving a direction that employees must be vaccinated (and provide proof of vaccination) in the workplace to determine whether mandatory vaccination of employees is lawful and reasonable in the circumstances.

Where can I find further information?

Overview

Who needs to know and/or comply with this?

Advisory Entities (including Boards and Committees)
Departments
Executive agencies related to Departments
Separate agencies
State Owned Corporations
Statutory Authorities/Bodies
Subsidiaries of the NSW Government established under the Corporations Act

AR Details

Date Issued
Aug 30, 2021
Review Date
Mar 31, 2022
Replaces
Replaced By

Contacts

Contact
https://www.dpc.nsw.gov.au/contact-us/contact-the-department-of-premier-and-cabinet/
Phone
02 9228 5555
Publishing Entity
Department of Premier and Cabinet
Issuing Entity
Department of Premier and Cabinet