There is much uncertainty about employer obligations in relation to recently announced Queensland Government mandates around vaccinations. To help you in navigating upcoming employment requirements, the team at HRM Contracting and Consulting have provided further information (current as at 19 November 2021) to assist.
The Queensland Government has introduced requirements for certain workers to be vaccinated against COVID-19 from 17th December 2021. This includes:
- Health Service Employees
- Queensland Ambulance Service Employees
- Hospital And Health Service Contractors
- Residential Aged Care Facility Workers (First Dose By 16 September 2021)
- Workers In Quarantine Facilities
- Essential Workers with Permission To Cross Into Queensland From New South Wales.
On 9th November 2021 Queensland Health issued a Media Release that indicated a Directive will take effect from 17th December 2021, or when the State reaches 80% vaccination for those who are eligible.
From December 17th, all hospitality venues, music, sports and entertainment venues, government owned galleries, museums and libraries will be open to fully vaccinated staff and patrons.
Lawful And Reasonable Directions
Employers can direct their employees to be vaccinated if the direction is “lawful and reasonable”. For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies. Essentially, if your business is one that falls into the newly identified sectors specified in the latest Public Health Order, you and your staff must be fully vaccinated in order to comply.
There are a range of factors that may be relevant when determining whether a direction to an employee is reasonable. Things to take into consideration include the nature of your workplace, for example:
- The extent to which your staff need to work in public facing roles,
- Whether social distancing is possible and
- Whether your business is providing an essential service
You also need to consider the level of risk that comes with each role and exposure to the general public.
Consulting With Your Staff
Requirements to consult with your employees are set out in legislation, awards and enterprise agreements. Meet with as many staff as possible to explain the changes and what they could mean for individuals. Allow an opportunity for individuals to express their concerns, ask questions, provide alternative solutions, and discuss their eligibility for vaccination and, or any medical exemption. Consider all and any matters raised by individuals. At the same time, you must ensure that your business remains compliant with public health orders and other legislation. It is also important to consider all options available for employees for example, conducting work offsite, changing roles and any other options that may be available and reasonable.
What Happens If an Employee Chooses Not to Be Vaccinated?
If, after consultation has taken place, your employee chooses not to be vaccinated you should, as a first step, ask the employee to explain their reasons for choosing not to be vaccinated. If the employee gives a legitimate reason for not being vaccinated (for example, the employee has an existing medical condition that means vaccination is not recommended for the employee), you should consider whether there are any other employment options available that do not require vaccination. We encourage employers to discuss options with their employees, depending on the circumstances of their individual workplace.
Can an Employee claim they are being discriminated against if they choose to be unvaccinated?
If, due to the nature of the role or the workplace, employees are required to be vaccinated, but they choose not to, grounds for discrimination can only occur if the reasons for refusal fall into one of the protected categories. For more information on workplace discrimination go to Fair Work.
Can an employer take disciplinary action if an employee chooses not to get vaccinated?
As an employer, you may be able to take disciplinary action, including termination of employment under your Misconduct Policy, against an employee for declining to be vaccinated if the employee’s refusal is in breach of:
- a specific law, or
- a lawful and reasonable direction requiring vaccination.
Before taking any action, you should talk to the employee and discuss the employee’s reasons for not wanting to get vaccinated. Whether you can take disciplinary action will depend on the individual facts and circumstances. To work out if and how you can take disciplinary action, you should consider the terms, obligations and rights under any applicable:
- enterprise agreement or other registered agreement
- employment contract
- workplace policy
- state or territory public health order.
Can I request that an employee provide proof of vaccination?
If you have provided a lawful and reasonable direction to be vaccinated for coronavirus you can also ask the employee to provide evidence of their vaccination. Australians can access proof of vaccination after they have been vaccinated through MyGov, their vaccination provider (including a medical practitioner) or the Australian Immunisation Register.
If you have concerns over your obligations as an employer, the team at HRM Contracting and Consulting can assist you in navigating the correct plan and approach for your team. You can get in contact with a member of their team on the following link: https://www.hrmcc.com.au/