On 10 November 2021 the Queensland Government issued the Public Health Direction ‘Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction’ (the Direction).
Generally, the Direction makes it mandatory for any worker in healthcare who enters, works in or performs services in a healthcare setting to be fully vaccinated against COVID-19 by 15 December 2021.
The mandatory vaccination requirements are subject to some exemptions and there are obligations on employees to provide evidence of vaccination and on employers to keep records of vaccination.
It is recommended that affected employers consult with employees and implement mandatory vaccination policies so it is clear to employees that they will not be able to attend work if they cannot provide evidence of being fully vaccinated from 15 December 2021. An employer will not be required to pay an employee who is not able to attend work because of the Direction. However, the employer and the employee can agree for an employee to access annual or long service leave where they are unable to attend work.
In some circumstances, disciplinary action may be able to be taken if an employee refuses to provide evidence of vaccination. However, careful consideration should be had to ensure compliance with legislation when considering taking disciplinary action, including adverse action and discrimination.
This alert provides detailed information on who is covered by the Direction, details on the exemptions and the Direction itself.
The Direction applies to workers in healthcare who enter, work in, or provide services in a healthcare setting.
“Worker in healthcare” is defined as a person who works, undertakes an educational placement, or volunteers in a healthcare setting, including:
- a person registered under the National Registration and Accreditation Scheme administered by the AHPRA;
- a person who is a self-regulated allied health professional as published on the Australian Government Department of Health website;
- a qualified person who meets the requirements defined in the Private Health Insurance (Accreditation) Rules 2011 and who provides a service or treatment that attracts or is eligible for a rebate from Medicare or a private health insurance organisation;
- any other person who works as a health professional, contractor, independent third party provider, other employee or volunteer in a healthcare setting, whether employed by the healthcare setting or performing the work under another arrangement.
“Healthcare” is defined as services, support and medical treatment provided to a person to support, promote or improve their health and wellbeing and includes medical care, allied healthcare, other healthcare, support services and personal care and disability support services.
“Healthcare setting” is defined as a setting or premises where healthcare is provided. Examples include:
- public hospitals, public health clinics, ambulance services, patient transport services or other health services;
- residential age care services;
- shared disability accommodation services;
- private provider facilities such as general practitioners, private nurse offices and allied health consulting offices, pharmacies, optometrists, dental surgeries and private pathology centres;
- not-for-profit health organisations providing and/or commissioning public healthcare under a service agreement with any State or Commonwealth agency, including an Aboriginal and Torres Strait Islander Community Controlled Health Service;
- non-government organisations delivering healthcare services;
- education settings within a healthcare setting;
- outreach services in other settings provided by the facilities listed above;
- Australian Red Cross Lifeblood collection centres;
- in-home delivery of intensive disability support services;
- aged care services funded by the Australian Government and delivered in the home;
- school-based healthcare, including in special schools;
- healthcare services provided in other settings such as gyms;
- mobile services such as a mobile dental clinic van or mobile health promotion van.
The Direction states a worker in healthcare must not enter, work in, or provide services in a healthcare setting unless the worker in healthcare complies with the COVID-19 vaccination requirements.
The COVID-19 vaccination requirements are:
- by 15 December 2021, a worker in healthcare has received the prescribed number of doses of a COVID-19 vaccine; or
- where COVID-19 vaccination requirements in another public health direction or an employment direction also apply to the worker in healthcare, the worker must receive the prescribed number of doses of the COVID-19 vaccine by the date in those requirements; and
- as soon as reasonably practicable after each dose of COVID-19 vaccine, the worker in healthcare must provide evidence of complying with the COVID-19 vaccination requirements to their employer/responsible person for the healthcare setting.
Evidence of COVID-19 vaccination requirements may include a person’s MyGov record or immunisation history statement from the Australian Immunisation Register.
The Direction requirements do not apply to a worker in healthcare who is unable to be vaccinated due to a medical contraindication where the person responsible for the healthcare setting:
- assesses the risk to the staff member, other staff, patients, clients and other persons at the healthcare setting; and
- determines that the unvaccinated worker may continue to work in the healthcare setting where their work cannot be performed outside the healthcare setting; and
- the unvaccinated worker complies with the following requirements:
- comply with the National Guide for Safe Workplaces and other COVID-19 guidance provided by Safe Work Australia for the healthcare setting; and
- produce a negative COVID-19 PCR test before commencing each work shift in a healthcare setting; and
- wear PPE as required under an established PPE guideline for the healthcare setting; or
- where the worker in healthcare is a person to whom the Health Employment Directive 12/21 Employee COVID-19 Vaccination requirements (HED) or the Residential Aged Care Facilities Direction (No. 9) or its successor applies, comply with the requirements relating to the medical contraindication or any other exceptions to mandatory vaccination requirements in the HED or the direction.
To meet the medical contraindication exception a worker must provide a medical certificate, issued by a medical practitioner, and their Australian Immunisation Record, specifying the medical contraindication that makes a person unable to be vaccinated and the period of the medical contraindication, if it is temporary.
Where the medical contraindication is temporary the exemption only applies for the period specified in the medical certificate.
Responding to an emergency
The requirement does not apply to an unvaccinated worker in healthcare who enters the healthcare setting to respond to emergency, but they must comply with PPE guideline requirements for the healthcare setting.
Responding to critical workforce shortages
A person who has not complied with COVID-19 vaccination requirements can enter, work in, or provide services in the healthcare setting for a short period until the critical workforce issue can be resolved, if:
- the responsible person has assessed the risk to other staff, patients and other persons accessing the healthcare setting; and
- the responsible person reasonably believes it is necessary to respond to a critical workforce shortage; and
- PPE is used by the worker in healthcare in compliance with the PPE guideline and any COVID safe plans for the healthcare setting; and
- a negative COVID-19 PCR test result is provided by the unvaccinated worker in healthcare before starting work each shift.
An employer of a worker in healthcare must keep a record of their having sighted evidence of, or verified, the workers’ vaccination status, evidence supporting a claimed medical contraindication, and of the negative COVID-19 PCR test result before an unvaccinated worker commences work each shift.
Affected employers will be required to mandate COVID-19 vaccination if they are covered by the Direction.
It is recommended you introduce a mandatory vaccination policy based on the Direction and ensure that you accommodate medical contraindications in accordance with the Direction.
When implementing a mandatory vaccination regime you should consult with staff and unions, as required under any Industrial Instrument and consult with staff and HSO’s as required under the Work Health and Safety Act 2011 Qld.
You will also need to implement an appropriate regime for obtaining and keeping records in relation to employee vaccination status which comply with your privacy obligations.
Should you require further advice or assistance in preparing a Mandatory Vaccination Policy and implementing a mandatory vaccination regime, or if you are uncertain if the Direction applies to your workplace, please contact Suzanne Wishart.
This publication has been carefully prepared, but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.