COVID-19 regulation wrap-up for 2022

Christy Miller, Claire Kosack and Brittany Keller
22 Dec 2022
Time to read: 5 minutes

The National Cabinet's new strategy signals that employers will need to be more vigilant about monitoring and responding to the risks of COVID-19 infection in the workplace.

With an up-tick in COVID-19 cases around the country, and with Christmas and New Year celebrations upon us, it seems there's no time like the present to wrap up what has been another tumultuous year with an update of the current COVID-19 regulations across the country.

Removal of mandatory isolations, pandemic payments and public health directions

On 30 September 2022, the National Cabinet agreed to end mandatory isolation requirements for COVID-19 across Australia effective 14 October 2022.

Each of the States and Territories implemented the change by amending relevant public health legislation and subsequently revoked all public health directions requiring individuals to isolate following a positive COVID-19 test.

This decision also saw the end of the Pandemic Leave Disaster Payment effective 14 October 2022.

However, the National Cabinet agreed to retain targeted financial support for casual workers in aged care, disability care, aboriginal health care and hospital care sectors (High Risk Settings Pandemic Payment), to protect the most vulnerable and those in high-risk settings.

The National Cabinet flagged that these measures would be reviewed at their December 2022 meeting (see below).

Outcome of the December 2022 National Cabinet meeting: what's happening now?

The National Cabinet had a virtual meeting on Friday 9 December 2022, during which they agreed to a strategic framework to support the transition of measures and policies to a sustainable "COVID-19 steady state".

The National Cabinet Strategic Principles, 2023: Transition to Sustainable Responses and Steady State is intended to build on the principles agreed by National Cabinet on 30 September 2022 to support a nationally consistent approach to transition Australia's COVID-19 response.

In order to transition to a “sustainable response” to COVID-19, the Framework intends for the national, State and Territory Governments to review existing measures and decide whether they should be ceased, scaled down, continued or changed to reflect the current stage of the pandemic. Further, the Framework provides that any continuing measures will need to fall within these four categories:

  1. Structural: measures that will need to continue permanently due to fundamental changes to parts of our health, economic and welfare system lead by COVID-19.
  2. Pandemic response: measures that will need to continue as Australia's baseline response to the pandemic, in order to reduce shocks to the health system and the economy and to provide additional capacity for systems to respond.
  3. Reserve capacity: measures that will only be needed in certain circumstances, when there is a need to scale up Australia's economic, social and health responses.
  4. Recovery: measures that are needed to recognise the new normal and look to recovery, noting that COVID-19 may not be endemic for some years.

Significantly, the National Cabinet recognised that the risk landscape with respect to COVID-19 has changed. In particular, the Framework notes that the "crisis phase has passed" and "the risks of widespread COVID-19 deaths, overwhelming health system capacity and a significant economic shock from COVID-19 have subsided."

This is a key factor shaping Australia's transition to a steady state COVID-19 response, with the Framework setting out the current strategy will involve a "move from mandates to strong recommendations".

As part of this transition, and of particular relevance to employers, the Framework states that the new strategy will also involve a "move from public health orders to work health and safety and individual behaviour change paradigm".

The National Cabinet concluded the COVID-19 segment of their meeting by agreeing to extend the High Risk Settings Pandemic Payment over the summer to continue to provide targeted financial support to casual workers in high-risk settings, and confirmed they will monitor the need for the payment to continue.

What does this mean for COVID-19 regulations going forward?

While the National Cabinet made it clear it considers Australia will be unable to return to a pre-pandemic state, it reinforced its position that the crisis phase of the pandemic had now passed, stating that part of the new normal will involve managing COVID-19 like any other respiratory illness.

With the COVID-19 peak period behind us, mandatory isolation for COVID-19 and the Pandemic Leave Disaster Payments appear unlikely to make a comeback.

Nevertheless, as we reach peak festive season, COVID-19 still seems to be the gift that keeps on giving, with an increase in cases across the country. In keeping with the strategic framework principles, health authorities in various states have recommended individuals take certain precautions based on current community risk levels, following an influx of cases throughout November 2022.

For example, in Queensland, the Department of Health has raised an amber alert as part of its COVID-19 traffic light system, recommending that individuals take the following precautions:

  • Wearing a mask in healthcare settings, indoors (if you cannot socially distance), on public transport, if you are older or medically at risk and if you are around people vulnerable to COVID-19.
  • Staying home if you are unwell.
  • Keeping up to date with your vaccinations.
  • Taking a Rapid Antigen Test (RAT) if you get COVID-19 symptoms.
  • If you get COVID-19:
    • Registering your RAT result.
    • Staying home until you are well again.
    • Wearing a mask for 7 days after your test.
  • Avoiding visiting hospitals, aged care or disability care for 7 days after your test.
  • Asking household members to closely monitor for symptoms.

However, in contrast to the approach we saw throughout 2020 and 2021, each of the State and Territory Governments has steered away from reintroducing legal mandates to address increasing case numbers.

What steps should employers be taking now?

We note there are no active public health directions in place relating to COVID-19 in Queensland, New South Wales, Victoria, Tasmania, South Australia, Western Australia and the Northern Territory.

However, the ACT does currently have a public health direction in place until 29 December 2022, which requires individuals to wear a mask in high risk settings.

This means that, with the exception of the mask mandate in ACT, there are currently no directions in place requiring employees to wear a mask in the workplace, to stay away from the workplace for a prescribed period of time after they test positive for COVID-19, or to be vaccinated against COVID-19 in order to legally attend the workplace (with the exception of healthcare workers who may be subject to other legislative requirements to be vaccinated, or any requirements that an employer has included in policy).

However, employers still owe duties to ensure the health and safety of employees, contractors and other persons in the workplace, so far as is reasonably practicable, including identifying relevant hazards and implementing control measures to eliminate or minimise relevant risks.

It is still recommended by health authorities across Australia that workers do not attend the workplace if they are unwell with COVID-19 (or any other infectious illness).

Given this, while the virus continues to circulate in our communities and new variants emerge, it is important that employers take the following steps to manage the risk of COVID-19 infection in their workplace:

  • review and update (as required) risk assessments, to reflect the current / evolving COVID-19 risk landscape;
  • consider if any modifications or changes to control measures are required to eliminate or minimise, so far as is reasonably practicable, any risk associated with COVID-19 infection in the workplace;
  • consult with workers about the risks associated with COVID-19 infection in the workplace and any proposed changes to COVID-19 control measures in the workplace; and
  • implement or remove any control measures and review and update any COVID-19 related policies (as required), in particular noting the removal of any public health directions that may have previously informed these controls (for example, vaccination mandates).

Ultimately, the National Cabinet's new strategy signals that employers will need to be more vigilant about monitoring and responding to the risks of COVID-19 infection in the workplace, as the Government moves away from the more prescriptive approach we saw earlier in the pandemic and looks to employers to manage risk through their individual work health and safety measures.

In light of this new strategy, and with the virus unlikely to be endemic for some time, it is a critical time for employers to evaluate their current work health and safety practices and consider what control measures are suitable to their particular business and the current level of risk in the community.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.