Whilst most businesses are winding down for a break over the Christmas period, some employers in Queensland, Western Australia and Tasmania are frantically trying to assess whether they will have sufficient staffing levels to survive the holidays.
Public Health Orders requiring mandatory vaccination for staff in certain industries are already the norm in most states and territories, but Queensland, Western Australia and Tasmania are about to follow in the footsteps of New South Wales, Victoria and more recently, the Northern Territory, expanding the vaccination mandate to include staff in industries such as hospitality and non-essential retail.
However, for these states, the requirements leave employers exposed to potential staff shortages over the busy Christmas period if staff choose not to comply, with the double dose mandate coming into effect on the 15th of December in Tasmania, the 17th of December in Queensland, and a first dose requirement by the 31st of December in Western Australia.
The difficulty with Public Health Orders is that the Orders are generally not made available to the general public until the time they come into effect. This means employers have to rely on the limited information available via government websites to understand their obligations, which could in fact change upon release of the Order.
Employers need to be taking action now to ensure adequate staffing levels are maintained through this period, and that precautions are put in place to ensure that any new hires will also be able to comply with the health orders when the relevant date arrives.
However, in the absence of a Public Health Order (or a mandatory workplace covid-19 vaccination policy where applicable) requiring employers to request information about employees, employers need to be careful about how they obtain this information, and how they store this information in line with Discrimination and Privacy legislation, which may apply.
ER Strategies has already received a large influx of calls in relation to these changes. Employers in Queensland, Tasmania and Western Australia should carefully review the information below to ensure they are prepared for these changes. Clients of ER Strategies should start seeking advice on these matters well before the Christmas period, to ensure their enquiries are addressed by the ERS team before our office shut down briefly in late December, over the Christmas-New Year period.
What mandates are coming into effect?
TAS:
From December 15, only vaccinated staff and patrons will be able to visit premises and events including:-
- Pubs, nightclubs, bars, and events such as music festivals where people are freely mixing and moving about;
- Licensed events of over 250 indoors and 500 outdoors (consistent with the current COVID-19 Events Framework) with either a licence or permit to serve alcohol.
Key Resource for TAS employers:
QLD:
From December 17, only vaccinated staff and patrons will be able to visit premises and events, including:-
- hospitality venues such as hotels, pubs, clubs, taverns, bars, restaurants or cafes;
- indoor entertainment venues such as nightclubs, live music venues, karaoke bars, concerts, theatres or cinemas;
- outdoor entertainment activities such as sporting stadiums or theme parks;
- festivals – either indoor or outdoor – such as musical festivals, folk festivals or arts festivals;
- Queensland Government-owned galleries, museums or libraries.
Key Resources for QLD employers:
- https://www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/current-status/queensland-restrictions-80-percent-vaccination
- https://www.covid19.qld.gov.au/__data/assets/pdf_file/0021/220377/DPC7976-Vaccine-status-plan.pdf
WA:
Some industries in WA already require at least 1 dose of vaccination, however, for the purpose of ER Strategies’ clients, the following dates are most likely to apply. All employers should review the key links below to confirm how the orders will apply to their workplace.
Employees in the following industries must be able to demonstrate that they have had at least one dose of a COVID-19 vaccine by 31 December 2021, and a second dose of vaccine by 31 January 2022, in order to continue attending the workplace –
- Supermarkets, grocery, butcher, fruit and vegetable stores or fishmongers; indoor or outdoor food markets;
- Restaurants, pubs, bars or cafés;
- Bakeries;
- Post offices;
- Hardware and department stores;
- Child care or family day care providers;
- Staff working in or entering remote Aboriginal communities;
- Schools or boarding schools (teachers and other support staff)*;
- TAFEs and colleges of vocational education;
- Financial institutions;
- Critical infrastructure and services necessary for the health, safety or welfare of the community, any person, animal or premise, such as:
– Veterinary clinics
– Utilities (power, gas and water, public and private)
– Security provided to critical providers/workplaces only
– Government regulators
– Domestic and commercial waste and resource recovery
- Petrol stations, truck stops and roadhouses;
- Public transport;
- Commercial transport including taxis, rideshare and other passenger services;
- Remaining Port operations;
- Remaining commercial transport, freight or logistics;
- Hotel, motel or other accommodation facilities to provide accommodation services;
- Funeral or mortuary services;
- Building, maintenance or construction services.
Key Resources for WA employers:
- https://www.wa.gov.au/government/document-collections/covid-19-coronavirus-mandatory-vaccination
- https://ww2.health.wa.gov.au/~/media/Corp/Documents/Health-for/Infectious-disease/COVID19/Vaccination/COVID19-Mandatory-vaccination-FAQs.pdf
- https://ww2.health.wa.gov.au/Articles/A_E/Coronavirus/COVID19-vaccination-program/Mandatory-COVID19-vaccination
What happens if staff choose not to be vaccinated?
Vaccination against COVID-19 in Australia actually remains voluntary in that people can choose whether or not to be vaccinated, albeit with impacts on their rights and freedoms. Most organisations have not moved to implement a mandatory vaccination policy and are simply enforcing the terms of the Health Orders which directly apply to their businesses.
It is at the individual employee’s discretion as to whether they choose to be vaccinated, however, should an employee in an industry regulated by a Health Order choose not to get the jab, this may have implications on their ability to provide their labour to their employer, and for their ongoing employment.
If an employee informs you that they are not going to be vaccinated, or that they are unable to comply with the public health order, you should seek expert advice as to your rights and obligations as an employer. A common misconception is that this scenario would allow employers to automatically ‘stand down’ the employee, or provide unequivocal grounds for termination. Neither should be considered to be the case.
Employers are encouraged to proceed with caution and explore all appropriate options which may allow the employment relationship to remain on foot.
Clients of ER Strategies can contact the team on 1300 55 66 37 for useful resources and expert advice based on their specific situation.
What happens if you need to hire new staff to get through this period?
The timing of these health orders may mean that employers in TAS, WA and QLD have to start considering hiring staff who will be able to perform work once the mandates come into effect. It is worth noting that vaccination status alone is not a protected factor against discrimination under the relevant legislation.
However, some factors which may prevent an employee from accessing vaccination such as illness, injury or pregnancy, are protected attributes, and employers should be cautious when seeking information relating to an employee’s vaccination status in case these protected aspects are applicable.
Employers should consider using wording to the effect of ‘will you be able to comply with the public health order from [insert appropriate date here]?’, to determine if these employees will be able to provide their labour to the business during this period.
Employees with valid exemptions from vaccination will most likely be able to continue to work under the health orders, so this will help ensure employees who may not be able to receive a vaccination on this basis are not discriminated against, as part of the hiring process.
If employees believe that they are not being offered a job on the basis that they have an attribute such as an illness or disability, they may also be eligible to pursue a general protections or discrimination claim if the employer could have made reasonable accommodations to allow the employee/s to work, and they can still carry out the “inherent requirements” of the job.
All employers should therefore remain vigilant throughout the recruitment process.
Employers should review the appropriate requirements for medical exemptions from vaccination for their state / territory, and any questions regarding exemptions should be directed to the relevant state / territory governments.
Can I ask current employees about their vaccination status now?
In the absence of a health order, employers should tread carefully when asking employees about their vaccination status.
For some employers, obtaining this information is critical in understanding whether their business will have sufficient staff to continue operating once the mandates come into effect. ER Strategies recommends implementing a policy which explains to staff why this information is required, how the employee will be asked to provide this information, and any evidence requirements that may be required by the business.
Employers can consider incentive programs, which incentivise employees to share this information with their employer in exchange for something beneficial to the employee, such as the opportunity to win a prize, or a small cash payment.
Unless a health order specifically requires it, ER Strategies would not recommend obtaining and storing a copy of an employee’s vaccination status/certificate or record. Under the Privacy Act 1988, strict provisions apply to obtaining and storing medical information relating to employees, and employers should seek to eliminate the risk of non-compliance with these laws where possible.
In most states or territories, simply sighting an employee’s vaccination record will be sufficient. However, employers should review their obligations under an applicable health order, as the orders become available.
Clients of ER Strategies can contact the team for suitable information on their obligations under privacy legislation, including useful templates to help inform staff of their rights under the legislation, in the event they are required to maintain a record of their vaccination status.
Conclusion
Employers in Tasmania, Western Australia and Queensland need to take immediate action to understand how the introduction of public health orders over the holiday period will impact their businesses.
State and Territory government websites remain the primary source of information relating to the mandates, and all other restrictions and initiatives in place to limit the spread and impact of COVID-19.
Clients of ER Strategies are strongly encouraged to contact us to discuss their specific situation. The team is available during business hours Monday to Friday (AEDT).
It should be noted that the team is taking a well deserved break over the Christmas / New Year period, and most non-urgent enquiries will go unattended during this time. So, we highly encourage you to contact the team sooner, rather than later!
