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Easter 2022: Easing Of Queensland COVID restrictions – Are we still mandating the COVID-19 vaccination in workplaces?

By Andrew Tobin / 08 April 2022

On 5 April 2022, the Queensland Government announced an easing of the restrictions applicable to COVID-19 vaccination status in a range of venues and events. From 1am on Thursday 14 April 2022, the requirement to check in and be fully vaccinated will end for:

  • pubs, clubs, cafes and restaurants;
  • theme parks, casinos and cinemas; 
  • weddings; 
  • showgrounds; and 
  • galleries, libraries, museums and stadiums.

Vaccination and check-in requirements will continue for anyone visiting or working in vulnerable settings (hospitals, disability, accommodation services, residential aged care) as well as for workers in high risk settings including schools, childcare, prisons and airports.

The question then arises as to whether employers in Queensland, outside of those industries and contexts can, legally, continue to enforce a ‘no jab no job’ mandatory vaccination policy. The answer is a definite ‘maybe’ but, for many employers will, at least in Queensland from 1am on 14 April 2022, change from a firm ‘yes’ to ‘probably not’.

Throughout the recent course of the pandemic, we’ve written extensively about the whys and wherefores of mandating the jab in workplaces, including the developing case experience associated with – the generally successful – attempts by employers to enforce the jab without the benefit of applicable public health orders. You can read the most recent version of that discussion here, noting that it predates (by a few days!) the latest announcements in Queensland.

Until now the rationale for being able to mandate the jab in workplaces – outside of those subject to specific public health orders – turned on workplace health and safety considerations. Persons conducting a business or undertaking are required, on pain of criminal penalties, to eliminate or minimise risks to health and safety arising out of the conduct of the business or undertaking, so far as reasonably practicable. While vaccination rates in Queensland were relatively low, it was a simple enough argument to make that most employers had a positive obligation to mandate and enforce the jab for most of their workers, where there was a material risk of exposure to the virus in the course of normal work. This was particularly so where the government imposed a similar mandate to various settings regarded as high risk, thinking particularly of entertainment and similar public venues.

So what’s changed? Well, in Queensland, our government now takes the view that the vaccination rate in our community has reached the point (90.5% double dosed) where, to maintain the restrictions serves no ongoing purpose. According to our Chief Health Officer the state has passed the peak of community transmission for the second wave of the Omicron BA.2 strain; hospital admissions are expected to fall and, as at 5 April 2022 only four patients across the state were being ventilated in ICU.

In our own business where, to date, we have maintained a mandatory vaccination policy, we are taking this pragmatic view for our Queensland operations: if our staff are now free, in their own time, to go to pubs, clubs, restaurants etc where no restrictions apply, we can’t see how we can run our business – in most respects – on any different basis. We do not operate in a high or higher risk setting and, while we might periodically deal face to face with vulnerable people, that is not typical or something we can’t suitably manage other than by mandating vaccination for our staff generally. We will continue to be careful and conservative and will monitor and seek to manage risk to discharge our relevant obligations, including in the following respects:

  1. We will expect/direct our staff to comply with ongoing quarantine/isolation/masking requirements applicable to individual infection or confirmed cases of COVID-19 in ‘close contact’ situations. We will monitor the rules and continue to keep our staff informed about them as government management of the pandemic progresses.
  2. We will expect/direct our staff not to come to or stay at work if they are experiencing symptoms consistent with COVID-19 infection without, at least, a negative RAT or PCR test. RAT testing is accessible in our workplaces.
  3. We will expect/direct our staff to tell us if they test positive for the virus as soon as that occurs so that we can, on a case by case basis, manage the risk of transmission in our workplaces.
  4. We will not permit our staff to mingle with vulnerable people and populations without a specific risk assessment and safe work method statement for the management of the risks associated with COVID-19 infection. This might require confirmation of personal vaccination, masking, situational RAT testing or other control measures.
  5. Similarly, we will take care not to expose our staff to situations where they are at higher risk of infection than exists in the general community.
  6. We will ask intending visitors to our premises, for appointments and events, not to come if they are experiencing symptoms consistent with COVID-19 infection without, at least, a negative RAT or PCR test.

We will also:

  1. abandon our mandatory vaccination policy for staff and visitors to our premises;
  2. destroy previously collected evidence of vaccination (which we promised to do in our policy);
  3. not ask for or seek evidence of a person’s vaccination status unless, having conducted a risk assessment, vaccination is one of the controls we might reasonably deploy to manage a particular risk;
  4. not, as the default, exclude anyone from opportunity based on vaccination status; and
  5. continue to encourage our staff to vaccinate, both for COVID-19 and also for the flu.

Whether or not this is the right approach for your business to take needs to depend on your own risk assessment as applicable to your business operations. The virus is still prevalent in the community. It is still causing serious illness and death. There will almost certainly be situations where the ongoing maintenance and enforcement of a mandatory vaccination policy – outside of situations covered by applicable public health directions – continues presently to be appropriate. For further guidance refer to our latest compilation of guidance material, or call us to discuss your situation.
 

Authors
Andrew Tobin
Partner
Andrew is a Partner and the head of HopgoodGanim Lawyers’ Workplace and Employment practice.

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