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 strongly encourages government sector employees who can safely be vaccinated to remain up-to-date with COVID-19 vaccinations, as recommended by the Australian Technical Advisory Group on Immunisation (ATAGI) in their clinical guidance for the use of COVID-19 vaccines.

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);

• 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?

Information and Privacy Commission: Fact Sheet - Collection of COVID-19 vaccination information

https://www.ipc.nsw.gov.au/media/3195

SafeWork Australia: COVID-19 Information for workplaces

https://www.safeworkaustralia.gov.au/covid-19-information-workplaces

Fair Work Ombudsman: Coronavirus and Australian workplace laws

https://coronavirus.fairwork.gov.au/

Anti-Discrimination NSW: Your rights during COVID-19

https://antidiscrimination.nsw.gov.au/anti-discrimination-nsw/discrimination/your-rights-during-covid-19.html