Emergency powers arising from COVID-19

Direction from Chief Health Officer – Emergency powers arising from COVID-19

While there has been some debate regarding mandatory vaccination requirements, the recent public health direction has set out new requirements for workers in healthcare, their employees, and responsible persons in healthcare settings, including limited exceptions.

On 29 January 2020, the Minister for Health and Minister for Ambulance Services made an order under the Public Health Act 2005 (“the Act”)declaring COVID-19 a public health emergency for all of Queensland. The duration of this order was extended by regulation to 26 December 2021 and it may be extended further.

Pursuant to section 362B of the Act, the Chief Health Officer, gave directions on 10 November 2021 to assist in containing and responding to the spread of COVID-19 with focus on workers in healthcare who enter, work in or provide services in a healthcare setting.  

Part 1: COVID-19 Vaccination Requirements for Workers in Healthcare

Part 1 states that a healthcare worker can no longer enter, work in, or provide services in a healthcare setting without compliance with the COVID-19 vaccination requirements. The vaccination requirements are as follows:

  • by 15 December 2021, the worker in healthcare has received the prescribed number of doses of the 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
  • after each dose of the COVID-19 vaccine, the worker in healthcare must provide evidence of complying with the COVID-19 vaccination requirements to their employer, where applicable, and to the responsible person for the healthcare setting as soon as reasonably practicable.

Examples of evidence of meeting the COVID-19 vaccination requirement includes a COVID-19 digital certificate or immunisation history statement from the Australian Immunisation Register (“AIR”). This may be accessed through MyGov, the Medicare mobile app or by calling the AIR and requesting a statement to be posted.

Limited exceptions

While the requirements are mandatory, there are limited exceptions to the COVID-19 vaccination requirement. The requirement to comply does not apply to a worker in healthcare who is unable to be vaccinated due to a medical contraindication where the responsible person of the healthcare setting has assessed the risk to the worker, other staff, patients, clients and other persons at the healthcare setting and determines that the unvaccinated worker in healthcare setting may continue to work where their work cannot be performed outside of their healthcare setting and that worker complies with the following

The direction sets out that the worker must:

  • 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 result before commencing each work shift in a healthcare setting; and
  • must wear PPE as required under an established PPE guideline for the healthcare setting; or
  • comply with the requirements relating to a medical contraindication or any other exceptions to mandatory vaccination requirements in other direction.

To exercise the limitation, workers in healthcare are required to provide a medical certificate, issued by a medical practitioner, and their Australian Immunisation Record, specifying the medical contraindication that makes them unable to comply with mandatory vaccination requirements and the period of the medical contraindication if it is temporary.

The direction emphasises that the exception is only appliable for the period specified on the medical certificate for the medical contraindication. New medical certificates are required if the medical contraindication continues beyond that specified time.

Importantly, an unvaccinated worker in healthcare may enter a healthcare setting to respond to an emergency. However, they must comply with the PPE guideline requirements for the healthcare setting. An example provided is an unvaccinated contractor who enters a private hospital to fix malfunctioning medical equipment required for critical patient care. This healthcare worker must still abide by the COVID safe plan and practices of the hospital, which includes the PPE requirements. Additionally, a worker in healthcare must report the entry to the responsible person or their delegate as soon as reasonably practicable.

Entering the workplace in a personal/private capacity

The direction clarifies that a worker in healthcare who does not comply with the COVID-19 vaccination requirements may still enter the healthcare setting in their personal or private capacity, but must not enter, work in or provide services as a worker in healthcare in addition to complying with all other public health directions applicable to entering the healthcare setting. This includes entering as a visitor of a patient, client or resident, or as a patient, client or resident of the healthcare setting themselves.

Part 2: The roles of healthcare workers and their employees to maintain requirements

The direction requires workers in healthcare and their employers to take all reasonable steps to ensure that a worker in healthcare who is prohibited from entering into or providing services in the healthcare setting does not enter, work in or provide services in the healthcare setting.  

Additionally, they must keep a record of their having sighted evidence of, or verified, the worker’s vaccination status, evidence of medical contraindication, and the negative COVID-19 PCR test result required before an unvaccinated worker can commence each work shift.

The worker in healthcare, or if applicable, their employer must provide the responsible person with confirmation that the worker in healthcare complies with the COVID-19 vaccination requirements. From 15 December 2021, the responsible person for a healthcare setting should take 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.

Part 3: Record keeping requirements for responsible persons

The direction requires a responsible person or their delegate to keep a record, locally or centrally, of COVID-19 vaccination information reported to it by workers in healthcare or their employer. This information is to be collected and used for ensuring compliance with the direction.

The information must be stored through a secured database that is only accessible to authorised persons and maintained in accordance with the Information and Privacy Act 2009 and the Public Health Records Act 2002.

Part 4: Exceptions when responding to critical workplace shortages

The direction has considered circumstances in which a responsible person for a healthcare setting may permit a worker in healthcare who has not complied with the COVID-19 vaccination requirements to enter, work in, or provide services in the healthcare setting, for a short period until the critical workforce issue can be resolved.

Circumstances are as follows:

  • where the responsible person has assessed the risk to other staff, patients, and other persons accessing the healthcare setting; and
  • where the responsible person reasonably believes it is necessary to respond to a critical workplace shortage; and
  • personal protective equipment 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 each work shift.

Part 5: Other matters

The direction also provides an emergency officer (public health) with the power to require a responsible person, a worker in healthcare, or their employer to comply with additional directions if the emergency officer believes the direction is reasonably necessary to assist in containing, or to respond to, the spread of COVID-19 within the community.

Part 7: Penalties

Part 7 of the direction sets out the penalties that apply if the person to whom the direction applies to fails, without reasonable excuse, to comply with the direction.

Pursuant to section 362D of the Act, failure to comply with public health directions results in 100 penalty units or 6 months imprisonment.

How we can help

We understand how these directions may feel burdensome for workers in healthcare, their employees, and responsible persons in healthcare settings. At Cohen Legal, we can offer you a consultation to discuss your employment restrictions, concerns, and the exceptions to assist in navigating your way through or complying with mandatory requirements.