RELATED KNOWLEDGE
As Queensland braces itself for an influx of COVID-19 cases and increased community transmission of the virus, the Sunshine state has issued public health directions mandating COVID-19 vaccination for a number of occupations and workplaces.
However, businesses should not rely exclusively on the directions in lieu of a tailored response appropriate to their particular circumstances. Employers should consider their own work health and safety (WHS) risk assessment, and the extent to which requiring that workers get vaccinated for COVID-19 is a reasonably practicable and effective means of controlling the risk of infection in the workplace.
Who is affected by the public health directions?
In early December 2021, Queensland's Chief Health Officer (CHO) issued the following public health directions requiring vaccination for COVID-19 in certain occupations and workplaces:
The occupations and workplaces covered by these directions include:
- Workers in healthcare and all other individuals who work in a healthcare setting, for example doctors who have consulting rooms at a private hospital and their staff and florist;
- Workers within "high risk settings", including early childhood, primary and secondary educational settings, corrective facilities, police watch houses, youth detention facilities and airports;
- Hospitality venues such as cafes, restaurants pubs and RSL clubs;
- Indoor entertainment venues such as nightclubs, indoor live music venues, cinemas, bowling alleys, casinos, convention centres and adult entertainment venues;
- Outdoor entertainment activities including stadiums hosting events with 5,000 or more visitors, theme parks and outdoor amusement parks, zoos, aquariums and showgrounds;
- Festivals (both indoor and outdoor) including cultural, art and music festivals where ticketed entry applies;
- Government owned galleries, museums, national and state institutions and historic sites; and
- State government libraries.
Each of the directions impose different timeframes for when a worker must have received their first and second doses of a COVID-19 vaccine.
Employers must know and understand the directions as they relate to their business and ensure that they are enforced.
Workers in a high-risk setting
All workers covered by the scope of this direction must have had their first dose of a COVID-19 vaccine by 17 December 2021 and be fully vaccinated by 23 January 2021.
As soon as reasonably practicable after each dose of the COVID-19 vaccine, workers must show evidence to their employer of having received the relevant COVID-19 vaccine dose.
Workers covered by Public Health and Social Measures linked to vaccination status Direction
All workers covered by the scope of this direction must be able to provide proof of COVID-19 vaccination (eg. evidence that they are fully vaccinated) or a medical contraindication to their employer before starting their next shift on or after 17 December 2021.
Workers in a healthcare setting
All workers covered by the scope of this direction must be able to provide proof of COVID-19 vaccination or a medical contraindication to their employer or, in the case of sole-traders, the healthcare setting they work in, by 23 December 2021.
What if my business is not covered by one the directions?
Even if your workplace is not covered by one of the directions listed above, persons conducting a business or undertaking (PCBUs) should be considering whether or not mandating COVID-19 vaccination is a reasonably available means of controlling the risk of infection at or caused by a workplace. That is not to say that every workplace needs to have a vaccination policy, rather that what we know or ought reasonably to know about the risk of COVID-19 in the workplace has changed and, as such, a risk assessment should be reviewed or undertaken (if not already completed) taking into account, among other things:
- The change in likelihood of infection, as a result of changes in government policy and the opening of borders;
- The changes in likelihood and consequence of infection, as a result of the introduction of the new variant, Omicron, to Australia;
- The change in availability of vaccines approved by the Therapeutic Goods Administration (TGA);
- The change in vaccination rates and efficacy of vaccination against the new variant, Omicron, with and without booster shots; and
- Other changes to what is known or ought reasonably be known about managing the risk of COVID-19.
Employers considering introducing a policy on vaccinating will need to assess whether a requirement to be vaccinated for COVID-19 is a lawful and reasonable direction within the circumstances of their workplace and a reasonably practicable control to minimise the risk of infection in the workplace. This involves assessing the risks of infection in the workplace or arising out of work / the workplace for employees, considering the effectiveness of the COVID-19 vaccination in reducing those risks and determining whether there are alternative controls available that can manage those risks.
However, even if your workplace is covered by a vaccination direction, it is important to note that the public health directions have end dates. Therefore, PCBUS still need to consider the need for a workplace specific policy regarding vaccination for COVID-19, even where a public health direction currently applies.
So what should I be doing if my workplace is covered by a direction?
Significantly, employers are not required to consult with employees in order to enforce a public health direction mandating COVID-19 vaccinations. This is in contrast to where an employer introduces a mandatory COVID-19 vaccination policy as part of their WHS obligation to minimise the risk of COVID-19 infection in the workplace, so far as reasonably practicable.
However, there are three broad obligations under the latest public health directions issued by the CHO that all affected employers should be aware of:
- Notifying workers as soon as reasonably practicable that:
- they will not be able to attend the workplace if they are unvaccinated; and
- the employer will need to collect and store proof of their COVID-19 vaccination;
- Collecting and securely storing vaccination information about current employees; and
- Not permitting employees to attend the workplace if they are unvaccinated.
Employers should also consider and discuss what arrangement will be available to employees who will be unable to work as a result of the directive. For example, depending on the nature of the employee's work, this may include taking leave (paid or unpaid) working from home, being stood down or even potentially termination of employment.
While an employer may have grounds to stand-down or dismiss an employee on the basis that they are unable to perform the inherent requirements of their role, it is important to remember that employees have various protections against being dismissed or treated adversely in the course of their employment. In order to avoid claims for unfair dismissal or discrimination, employers should ensure they carefully consider all options, follow a fair process and have a valid reason for standing-down or terminating employees. This is a complex area with many avenues still being tested, including industrially under safety laws, dispute processes and human rights laws. Employers should seek advice before implementing and enforcing a vaccination policy or dismissing workers for not complying with a vaccination policy.