Key details of the Covid-19 Public Health Response (Vaccinations) Order

The Covid-19 Public Health Response (Vaccinations) Order 2021 has been amended, with those amendments coming into force at 11.59pm on Monday 25 October 2021.

The amendments come after the government announcements on 13 October 2021. It is important to note that the Order provides some different vaccination dates to the initial government announcement. We explain the key obligations under the amendments in the following:

Persons not to carry out certain work unless they are vaccinated

Under the Order, an ‘affected person’ must not carry out certain work unless they are vaccinated. An affected person is a person who belongs to one of the specified groups.

The groups of affected persons who must not carry out work unless they are vaccinated has now been extended to also include groups in relation to health and disability sector, groups in relation to prisons, and groups in relation to affected education services. [1]

Health and Disability Sector - Groups in relation to the health and disability sector include:

• Health Practitioners
• Workers who carry out work where health services are provided to members of the public and whose role involves being within 2 metres or less of a health practitioner or member of the public for a period of 15 minutes or more
• Workers who are employed or engaged by certified providers and carry out work at the premises at which health care services are provided
• Care and support workers.

Education Services - Groups in relation to affected education services include:

• Workers who carry out work at or for an affected education service and who may have contact with children or students in the course of carrying out that work; or will be present at the education service at a time when children or students are also present. This includes volunteers and unpaid workers.
• Providers of a home-based education and care service. 

An affected education service includes early childhood services (other than a playgroup), registered schools, and hostels.

In addition, after 1 January 2022, a PCBU (Persons conducting a business or undertaking) must not allow a person who provides home-based childcare to carry out work unless satisfied that every person over the age of 12 years in the home where the home-based education and care service is provided is vaccinated.

Prisons - Groups in relation to prisons include:

• Staff members of a prison and persons employed or engaged by a contractor or subcontractor to provide services in respect of a prison, who may be required to undergo a security screening process before being allowed entry into the prison.

Obligations on PCBUs who employ or engage an affected person

A PCBU that employees or engages an affected person must:

• Not allow an affected person (unless exempt) to carry out certain work unless satisfied that they are vaccinated
• Notify each affected person of their duty to be vaccinated
• Not prevent the affected person from reporting for and undergoing vaccination during their working hours.

Duty to maintain vaccination records

A PCBU that employs or engages affected employees in the group in relation to health and disability sector, the group in relation to the affected education sector, or the group related to prisons, must also maintain vaccinations records. Records must include the following information [2]:

• Name, date of birth, telephone number and email address
• Whether the person is vaccinated
• If the person was vaccinated:
• The name of the COVID-19 vaccine they have received and the dates on which they received it.
• If the person is not vaccinated because they have received the first dose, but not a second dose of the vaccine, the latest date by which they must have the second dose.
• If the person is not vaccinated because they have not received a dose of the COVID-19 vaccine, the latest dates by which they must have their first and second doses of the vaccine to be vaccinated.
• If the person is not vaccinated in reliance on an exception or authorisations, confirmation of that and a copy of the exemption or authorisation.

The Order requires the affected person to provide the PCBU with the required information as soon as practicable and ensure that the information is updated as soon as practicable after it changes.

Relevant dates

For groups in relation to the health and disability sector and groups in relation to affected education services, the affected person must:

• Be treated as vaccinated until 15 November 2021 if they have had their first dose of a COVID-19 vaccine before the close of that date.
• Be treated as vaccinated until 1 January 2022 (and after that date) if they –
• have their first does of a COVID-19 vaccine before the close of 15 November 2021; and
• have their second dose of a COVID-19 vaccine before the close of 1 January 2022.

Essentially, this means that after 15 November 2021, affected persons in the health and disability sector and in affected education services will not be able to carry out certain work as outlined above if they have not had their first vaccination (unless a specific exemption or authorisation has been granted)

Likewise, after 1 January 2022, an affected person in the health and disability sector and in affected education services will not be able to carry out certain work as outlined above unless they have had their second vaccination.

For groups in relation to prisons, the respective dates are 6 November 2021 for the first vaccination, and 8 December 2021 for the second vaccination.

Director-General may authorise affected persons not fully vaccinated to carry out certain work and Power of Minister to grant exemptions.

The Order provides that the Director-General, on application of a PCBU, in specific circumstances may authorise affected persons not fully vaccinated to carry out certain work. The Order also provides that a Minister can grant exemptions in certain circumstances, for example to prevent significant disruption to health services. However, there are specific considerations the Minister must take into account before granting an exemption.

Advice

The specialist employment team at DTI Lawyers is able to provide advice regarding the requirements under the amended Order as they pertain to your specific circumstances. We can provide advice on whether particular employees would considered affected employees belonging to one of the groups, a PCBU’s obligations if employees/persons it engages are affected persons; advice around exemptions and authorisations; options in situations where employees/persons refuse to be vaccinated; and employee’s rights and obligations regarding vaccinations.

The specialist employment team at DTI Lawyers can be contacted on 07 282 0174.