FAQs - Mandatory COVID vaccines for healthcare workers

There were many questions from member following our webinar on the COVID-19 vaccine mandate. We've compiled a list of FAQs to help members below. If you have further questions or would like us to prepare communications or to assist you with managing the employment of unvaccinated staff, please do not hesitate to contact us at workplacerelations@amaq.com.au.
 

Who is a worker and how do we manage workers who are not employees?

1. What about contractors working in a private practice setting: Does the Direction cover them?

• Yes.  See Schedule 1, para. (d) of the Direction.
   

2. Do cleaners, IT technicians, air-conditioning maintenance workers count as workers, if they only come to the premises sporadically?

• Yes.  See Schedule 1, para. (d) of the Direction.
   

3. How do you manage for services such as a photocopier and air-conditioner maintenance, delivery person, couriers, cleaners (not employed but provided by a separate business), etc.?

• In the first instance, contact the service provider itself, rather than the 'worker' who visits your practice. Provide the service provider with a copy or hyperlink to the Direction, similar to this.
   

4. Do I have to liaise with couriers and Australia Post to ensure that their delivery people are double vaccinated?

• Yes.  After 15 December 2021 - the 'responsible person' for a healthcare setting should make reasonable efforts to obtain confirmation that any worker in healthcare that enters, works in or provides services in a healthcare setting has received the prescribed number of doses of a COVID-19 vaccine, or meets the conditions for an exception under this Direction (see para. 20, Part 2, Direction).
   

5. We have no control over what couriers turn up to deliver goods.  How do we manage this?

• You may want to install a bell for couriers to ring on your external door, prior to them entering the practice whereby they will leave the parcel or package outside once they have notified the relevant staff member that the goods have arrived.
• Alternatively, you can place a sign on the external window or door to the practice requiring that delivery drivers and couriers leave parcels in a designated area outside of the practice for collection.
• If you need to make physical contact with the courier or delivery driver, then to comply with the Direction, you will need to cite evidence of them having met the COVID-19 vaccination requirements such as their MyGov Record, Australian Immunisation History Statement or they may volunteer to show you their vaccination status on their QLD Check In App. 
• Ideally, you would also have this delivery driver complete a log book with their name, the company they are from, the time the parcel was received and their vaccination status.
   

6. Is an IT person who is paid invoices count as a “worker” within the meaning of the Direction?

• Yes, if the IT person 'enters, works in, or provides services in a healthcare setting' (see para. 20, Part 2, Direction). See Schedule 1, para. (d), Direction.
   

7. At the practice, we are currently renovating, would a construction worker be ‘any other person’?

• Yes, if the construction worker 'enters, works in, or provides services in a healthcare setting' (see para. 20, Part 2, Direction).
   

8. If we have an allied health practitioner who rents rooms at our General Practice who is not vaccinated, what is the best process to ensure we meet our obligations?

• The same process as is adopted for any other 'worker' within the meaning of the Direction, including an employee ((see Schedule 1, (a)-(d), Direction). See our live COVID-19 Vaccine Mandate Webinar and handout at this link.
   

What the Direction means for patients

9. Why does this Direction apply a cleaner, for example, but not patients?

• Patients are not workers and patients, in turn, fall outside of the scope of the Direction. If you have concerns regarding patients, we encourage you to address these concerns and seek guidance from our member’s medical indemnity insurer/medical defence organisation, subject to the member’s authorisation to do so.
   

Medical exemptions and other ‘potential’ exceptional circumstances

10. What if a worker claims a religious exemption?

• Given this is a new Direction, and unprecedented times, we are still waiting further guidance from the tribunals and the courts on such matters as in the event of inconsistency between the Direction and Commonwealth and State legislation, the legislation will prevail.
   

11. Would the exception to the COVID-19 vaccination requirement to respond to 'critical workforce shortages' cover workers that have received their first dose but has to wait longer for their second dose?

• Potentially, if you could meet the requirements as set out in Part 4 'Exception – Responding to Critical Workforce Shortages' in para. 23 of the Direction.
• Please note that where a worker has received one dose of a COVID-19 vaccine but has not received a second dose of the COVID-19 vaccine by 15 December then under the Direction a 'responsible person' whether that is an employer or otherwise must deny the worker entry, work in and provision of services, to the healthcare setting until such time as the worker has the 'prescribed number of doses of the COVID-19 vaccine' as stipulated in para. 9 (a) of the Direction. 
• Further, an employer and a principal contractor in a healthcare setting cannot provide an employee or an independent contractor with work in, entry to and provisions of services, in the healthcare setting until such time as the employee produces evidence of having received the 'prescribed number of doses of the COVID-19 vaccine'.
• An employee could take any accrued annual leave or if eligible, long service leave until such time as the worker in healthcare receives the 'prescribed number of doses of a COVID-19 vaccine'.  
   

12. How can you have the exempt worker show a negative COVID-19  PCR test if it often takes over 24 hours for result and they have to quarantine until they get a negative result?

• The worker would not be able to meet the evidence requirements in Part 1, paras. 8 and 9, and Part 2, para. 19 of the Direction. Quarantine per se is not a requirement in this context. 
• The worker would be unable to perform work in, services to, and enter the healthcare setting until the worker could provide the employer or 'responsible person' evidence of the negative COVID-19 PCR test result prior to each shift.
   

13. Daily PCR tests and masks are too much for an employer to monitor and enforce for employees with medical exemptions, do employers have to go to these lengths?

• 'Responsible persons' for healthcare settings (including employers) do have some discretion as to whether an unvaccinated worker can continue to work in the healthcare setting.
• The Direction requires that the 'responsible person':

1. assess the risk to the staff member, other staff, patients, clients and other persons at the healthcare setting; and
2. determine whether the unvaccinated worker may continue to work in the healthcare setting where their work cannot be performed outside the healthcare setting.  This may present as an alternative to having the worker perform work in the healthcare setting (see para. 10 (b), Part 1, Direction).

• If you are of the view that it is too burdensome to have the unvaccinated worker continue work in the healthcare setting, we strongly recommend you seek guidance tailored to your circumstances as if handled incorrectly, it may lead to legal claims.  Please contact us on workplacerelations@amaq.com.au or 07 3872 2222.
   

14. Can a practice dismiss a key staff member if they will not receive the COVID-19 vaccinations?

• Not necessarily but the worker will not be able to work in the healthcare setting after 15 December 2021.  See the FAQs, below the full text of the Direction, on the Queensland Government website at this link.
• The employee still has access to all the remedies should the employee be dismissed under the Fair Work Act 2009 (Cth) and other Commonwealth and State legislation (see para. 2, Preamble, Direction).
   

Employees refusing vaccination

15. If an employee refuses to be vaccinated, wouldn’t they lose their job?  Where does the penalty apply? 

• The employee will not be able to work in the healthcare setting. It does not necessarily mean that the employee will lose their job, consider an employee with very significant leave accruals, it is possible the employee could take their annual leave and/or long service leave.
   

16. Does the employer need to report a worker that is not complying with the Direction?

• There is no express duty to report non-compliance but both the worker and the 'responsible person', whether this is the employer or another person, must comply with the Direction.
   

17. When do the penalties imposed by the Direction apply? 

• The penalties in the direction apply commits an offence if the person (employer, worker or otherwise) fails, without reasonable excuse to comply with the Direction (see Part 7, Direction).
   

18. If an employee has used up their paid personal leave, do they just take unpaid leave or will they need to resign?

• An employer, could at their discretion, allow an employee to use paid personal leave but absent a medical contraindication recognized by the Direction, would not be entitled to personal leave in most circumstances because the worker does not have an illness or injury that has resulted in them being unfit for work. 
• However, should the employee provide a medical certificate to you, please seek guidance from us via email or phone: workplacerelations@amaq.com.au or 07 3872 2222.
• The employee must not work in a healthcare setting, if he or she does not meet the COVID-19 vaccination requirements set out in the direction by 15 December 2021. See the FAQs, below the full text of the Direction, on the Queensland Government website at this link.
• The employee will not be entitled to wages. The employee may resign or alternatively, you may be able to take disciplinary action against the employee for not complying with the Direction but there are significant risks of claims in doing so, so we recommend you seek guidance tailored to your circumstances from us, our contact details are: workplacerelations@amaq.com.au or 07 3872 2222.
• We strongly recommend you seek advice, that is guidance tailored to your circumstances from AMA Queensland should you anticipate this situation.  Please contact us on workplacerelations@amaq.com.au or 07 3872 2222.
   

19. With an unvaccinated employee, does their contract cease on 15 December 2021 if not medically exempt?

• No. For the unvaccinated employee’s employment to cease steps need to be taken to communicate to the employee the consequences of not complying with the Direction. 
• We strongly recommend you seek guidance tailored to your circumstances from AMA Queensland should you anticipate this situation.  Please contact us on workplacerelations@amaq.com.au or 07 3872 2222.
   

Please note, if an employee has been called into a healthcare facility for an emergency or the healthcare setting is experiencing critical shortages of workers, these may present as exceptions to the answers against each numbered question above and you should seek guidance directly from the AMA Queensland workplace relations team at workplacerelations@amaq.com.au or 07 3872 2222.
 

Recruitment and selection of staff

20. When recruiting, are we allowed to ask whether the prospective employee has met the vaccination requirements?  Are we able to list this in our advertising for the position?

• If a worker is to commence work in a healthcare setting after 15 December 2021, the worker must comply with the Direction, but that does not necessarily mean meeting the COVID-19 vaccination requirement set out in the Direction.
• It is strongly recommended that you state that the prospective employee must comply with the Direction.  Specifically, the employee must either meet the ‘COVID-19 vaccination requirements’ in Part 1 of the Direction except where the applicant has a medical contraindication or other exceptional circumstances.
   

21. Are we able to ask for evidence from a new employee at their interview for the role for evidence of their COVID-19 vaccination status?

• You may ask the applicant for evidence that the 'worker in healthcare….has received the prescribed number of does or a COVID-19 vaccine or meets the conditions for an exception under this Direction'. This language is consistent with the language in para. 20 of the Direction, for this information as part of the application.
• Further to the answers to questions 11 and 12 above, see the question: 'What are the vaccination requirements for new employees in healthcare settings?' in the FAQs, below the full text of the Direction, on the Queensland Government website at this link.