Dear QHA Members and Partners,
Further to earlier ER Bulletins about the Queensland Government vaccination mandate applying from 17/12/21, the QHA is pleased to provide the follow updates:
Chefs and vaccination
A chef working in a hotel, pub, club, tavern, bar, restaurant or café, or indoor or outdoor entertainment venue (i.e. a non-essential leisure business) MUST be fully vaccinated.
What are reasonable steps for an employer to comply with the mandate?
An owner is required to take reasonable steps to enforce the mandate. With regard to employees, this means:
- Asking employees to produce evidence of their vaccination status to you. This may be via a hard copy certificate or by electronic means such as through the Check In Queensland app;
- Asking employees to provide the required evidence of any claimed medical contraindication. NOTE: This is not a standard medical certificate;
- Recording that you have sighted the vaccination evidence / medial contraindication statement or certificate in the Register maintained at the workplace; and
- Not allowing employees to attend the workplace if they have not provided evidence that they are fully vaccinated.
Does the requirement to be vaccinated apply to service providers?
All service providers must be fully vaccinated to conduct work in the non-essential leisure business. This means that security guards must be vaccinated.
The exception will be where emergency maintenance work is being performed. An example of this includes a plumber who is coming on site to fix a burst pipe, or a refrigeration mechanic who is coming on site to fix a broken refrigeration system.
Vaccination Questions and Answers (a new Template C)
Below are some of the common queries the Employment Relations team have received about the impending Public Health Direction mandating COVID-19 vaccination in hospitality venues.There are still a number of questions that cannot yet be answered, and will not be answered until the QHA receives clarification or the Public Health Direction is released.
While we are waiting for the Public Health Direction, we can advise on the below:
Is an employee unable to work on and from 17/12/21 on unpaid leave or stand down?
From 17 December 2021 an unvaccinated employee will not be able to attend the workplace in the capacity of employee, or as a patron.
An employer and unvaccinated employee may agree for that employee to be on leave on and from 17 December - as opposed to the employment being terminated* due to the employee not meeting the inherent requirements of their position. It is important to note that such an absence is not a stand down of employment.
Because there is no stoppage of work at the workplace the above situation does not represent a stand down in accordance with section 524 of the Fair Work Act 2009 (‘FW Act’).
Additionally, during a period of unpaid leave, an employee does not accrue entitlements. During a stand down, they do.
Therefore, an employee should not be told their employment is stood down.
An agreed absence that is not paid leave is called unpaid leave. If unpaid leave is agreed, this should then be noted in the employee’s records, and on payslips.
*Note: employers should not terminate an employee for failure to comply with a lawful and reasonable direction to be vaccinated, in line with the impending Public Health Direction, prior to 17/12/21. From 17/12/21, if an employer wants to terminate employment, they will need to undergo a show-cause process, and the QHA will provide templates and advice on such a process prior to 17/12/21
Can an unvaccinated employee apply for annual leave?
Several members have asked this question.
An application for paid annual leave cannot be unreasonably refused by an employer (in accordance with section 88(2) of the FW Act.
If it is workplace policy that annual leave is not to be taken over the Christmas-New Year period because of operational requirements, i.e. it is traditionally busy and full staffing is required, it may be reasonable to decline the annual leave request.
My employee has provided a medical certificate. Does this mean they have a medical contraindication?
For an employee to receive an exemption from vaccination due to a medical contraindication, it is important to know what evidence needs to be provided by the employee.
Acceptable evidence of a medical contraindication is not a standard medical certificate.
The Services Australia website (click HERE to access ) provides that the only reasons an employee might be able to get an exemption is where they:
- had anaphylaxis after a previous dose of a vaccine
- had anaphylaxis after a dose of any component of a vaccine
- are significantly immunocompromised—for live vaccines only
- have natural immunity—for hepatitis B, measles, mumps, rubella and chickenpox only.
Not being able to be vaccinated for medical reasons is called a medical contraindication.
Where an employee cannot receive any of the approved COVID-19 vaccines for medical reasons, this will be recorded in their immunisation history statement and COVID-19 digital certificate.
In order to then have medical evidence of a medical contraindication, an employee will need their doctor to update their record on the Australian Immunisation Register (AIR) to say they have a medical contraindication.
The employee can then use the statement or certificate as proof of vaccination status.
This is evidence an employer can seek from an employee who claims they have a medical contraindication.
The team has developed TEMPLATE C, which can be downloaded by using the below links.
Template C is a letter that an employer can provide to an employee who is likely to be covered by the impending public health direction, and who has:
- Informed their employer that they cannot get any of the approved COVID-19 vaccines for medical reasons, or has provided a standard medical certificate which states this; and
- Not provided evidence of a medical contraindication through their immunisation history statement or COVID-19 digital certificate; and
- Already been issued Template A – Mandatory Vaccination for Queensland’s Hospitality Industry and/or Template 2A – Reminder – Mandatory Vaccination for Queensland’s Hospitality Industry; and
- Not been issued Template B - Direction to Get Vaccinated or another direction to get vaccinated.
If an employee has informed their employer that they are refusing to get vaccinated, and they do not have a medical contraindication, it is likely that they will be unable to provide evidence of vaccination by 17/12/21.
As such, it would be reasonable for an employer to commence recruiting for a new employee, to meet operational requirements.
However, employers cannot take any action to terminate an employee prior to 17/12/21. From 17/12/21, if an employer wants to terminate employment, they will need to undergo a show-cause process, which the QHA will provide templates and advice for prior to the 17/12/21.
Can I ask a candidate if they are vaccinated?
Where vaccination is an inherent requirement of the job, which means that the employer can contractually require an employee to be (and remain) fully vaccinated against COVID-19, an employer can ask a candidate about their vaccination status, and sight their evidence.
The proviso is that the employer should make vaccination, as an inherent requirement of the job, known to the candidate, either at the time the job is advertised, or at interview prior to asking about their vaccination status. This is to ensure that the candidate is aware of the requirement to be vaccinated.
Where a candidate indicates they have a medical contraindication, this will not exclude the candidate from being able to be employed.
Vaccination "Protest" Letters From Employees and How To Respond
A number of template letters are currently in circulation as a protest to the upcoming Queensland Government vaccination mandate which takes effect on 17 December 2021. Some of these template letters suggest that employers are ‘forcing’ employees to get vaccinated.
Several members have been in contact as a result of employees providing a version of a template to them.
What the template letters do not acknowledge or recognise is that the vaccination mandate is a Queensland Government decision that employers must comply with; employers cannot continue to trade unless they do. In addition, the obligation to comply with the mandate is also on employees, with the implication being that if an employee who is required to be vaccinated to work in a hospitality business chooses not to get vaccinated, they cannot attend that business on and from 17 December.
While the Chief Health Officer’s public health direction has not yet been released with all of the finer details, the letters are being sent to employers.
Characterised by their reference to privacy, anti-discrimination and biosecurity legislation as well as the more abstract Nuremberg Code and Siracusa Principles, such letters may leave employers feeling intimated or overwhelmed on first reading.
Further, employers are being asked, via these letters, to provide certain assurances about the safety of the COVID-19 vaccine, and provide medical evidence to the employee.
While it may be argued that many of the claims and comments made in these templates are based on a flawed mix of actual, irrelevant and/or fictional legal concepts, an employer should not ignore receipt of such correspondence from an employee – a further letter is likely to follow if so.
How do you respond?
1. Medically based questions
Where an employer is being asked to provide medically based responses to questions about the COVID-19 vaccine itself, an employer can simply respond that due to not being a medical professional, the employee should talk to their doctor about those questions that were raised in their letter.
2. Employment assurances
Where the question relates to employment, for example, as taken from one of the templates, the question is:
In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my position and that I will not suffer prejudice and discrimination as a result?
An employer should respond to this and not leave any suggestion of the employer treating an employee differently because of their vaccination status open.
At the QHA we have developed some template wording that members can adapt and adopt. Please see below for a few sentences that can be used in a reply:
I note that this letter you have sent me is a template that has been developed and made available for general use from persons who do not agree with mandatory vaccination.
The impending Public Health Direction, that will be issued by the Chief Health Officer in Queensland, will be issued under the Public Health Act 2015 (Qld).
This means that the Public Health Direction will have the effect of law, and the requirement to be fully vaccinated in order to continue to work at this venue on and from 17 December becomes an inherent requirement of your position with us.
As an employer to whom the Public Health Direction will apply, we must comply with our obligations to ensure that only vaccinated employees are rostered to work shifts from 17 December 2021.
As an employee, you must also comply with your obligations to be vaccinated to meet the inherent requirements of your position. Further, the obligation also exists for unvaccinated employees to not attend for work on and after 17 December 2021.
Employees who are not vaccinated at this time (excluding anyone with a medical contraindication who provides the required medical evidence of it) cannot enter the venue on and from 17 December.
This is not our rule as an employer, it is a government mandated rule that we must legally comply with. In addition, penalties will apply if an employer does not comply.
An employee who is not vaccinated as per the above, will not be able to enter the workplace. This is because that employee does not meet the requirements as per the intention of Public Health Direction.
There is no discrimination or unfair treatment in this given it is an individual employee’s decision to not comply with their legal obligations under the Public Health Direction. This means that an unvaccinated employee is, in not complying with what has been announced, is unable to come to work.
Please be advised that should you send us further correspondence as per one of the publicly available templates we will not be replying to it. We have provided you with the information you need to make a decision for yourself, and will not be entertaining inaccurate as well as offensive attempts to suggest that we, as an employer, are doing the wrong thing.
QHA Can Help!
The employment relations team can assist you with specific, and additional points to include in a reply to one of these templates. We can also review any response you intend to send prior to pressing the ‘send’ button.