by Sewar Mitanis – Senior Associate & Lesleigh Buxton – Workplace Relations Consultant
In the wake of Omicron’s rapid spread within the Australian communities, many industries are facing unprecedented challenges with staff shortages and absences due to being infected with COVID-19 or being considered “Close Contacts” of positive COVID-19 cases.
Motivated to manage this severe shortage, the Federal and Queensland State Governments have recently moved to changing the rules around the management and isolation of workers who are considered “Close Contacts”.
What are the changes relating to “close contacts”?
Whilst the Queensland State Government’s Isolation for Diagnosed Cases of COVID-19 and Management of Close Contacts Direction (No. 4) (Direction) imposes the obligation of “Close Contacts” of a diagnosed case to quarantine, it enables a “Close Contact” to leave quarantine “to perform work in a critically essential role” where their employer can provide evidence that they are required to work in such roles.
How can you comply with the Queensland Government’s Direction while ensuring the safety and wellbeing of your workers?
Employers should take the first step to determine if they are considered a “Critical Industry”, within the following:
- emergency services, including Police, SES, Coast Guard, Rural Fire Service and maritime rescue
- the resource sector
- agriculture and fisheries production
- freight and logistics
- public transport
- essential retail such as supermarkets and stores in remote locations/communities
- major manufacturing, distribution, and critical supply chains (for example food and petrol).
- disability and aged care (private and public)
Create a Critical Worker Criteria
The Queensland Government’s Direction allows an Employer in a “Critical Industry” to create a “Critical Worker List” of “Critically Essential Roles”. To qualify for this, Employers must provide evidence that:
(a) they require a person with particular skills; and
(b) work must be performed in person at the workplace; and
(c) work must continue to be performed to prevent an immediate risk of death or serious injury to a person, or prevent serious harm (social, economic or physical) in the community.
Therefore, employers may choose to create a “Critical Worker List” and submit it to email@example.com. This list will need to be reviewed by the Director General (or equivalent of a Queensland Government Department or Agency, or delegate), and be retained at the workplace in case of inspection. The list must include the following detail:
- the name of business and business details;
- list of critical roles including any contracted roles; and
- basis used to determine a role is considered critically essential.
The list does not need to be submitted in advance of an employee attending the workplace, but it must be submitted within 3 days of a “Close Contact” employee attending the workplace, directed to leave quarantine by an Employer and undertakes critically essential work.
How can you establish a “Critical Worker List”?
Prior to formulating the list, an Employer must conduct the necessary safety risk assessments and examine the need for such a list. The Queensland Government Direction provides that “Close Contacts” can be included on the “Critical Worker List” if:
(a) the worker has no symptoms consistent with COVID-19; and
(b) the worker is fully vaccinated against COVID-19.
This Direction makes vaccination against COVID-19 mandatory for all workers who are directed to leave quarantine and/or who may be interested in attending work whilst being declared “Close Contacts” while fully vaccinated also requires a booster, if eligible.
An employer cannot allow a worker at work (and out of quarantine) unless they satisfy the requirements of the Queensland Government Direction (i.e. the worker has no symptoms and is fully vaccinated).
An Employee directed to attend work whilst being considered a “Close Contact” must consent to returning to work. If the Employee refuses to return to work, this cannot be taken as a failure to abide by a lawful and reasonable direction on their part.
Should employers consult with stakeholders?
Depending on the industrial instruments that apply, Employers must follow their obligations to consult with affected employees and, where applicable, their unions, prior to formulating the “Critical Worker List” and mandating vaccination in the business. At a minimum, employers should consult with workplace health and safety representatives.
Supply of Rapid Antigen Tests
Effective from 24 January 2022, Employers seeking to direct workers, who are considered “Close Contacts”, to attend work must provide Rapid Antigen Tests to employees, with employees testing negative prior to commencing work on their first day of work and on every second day thereafter while working and on the 6th day test as required for “Close Contacts”.
Contact our expert Employment and Workplace Relations team for assistance with all your employment needs.
The information in this publication is of a general nature and is not intended to address the circumstances of any specific entity or individual. Although MBA Lawyers endeavours to provide accurate and timely information, no guarantee is provided that the information is accurate at the date it published or that it will continue to be accurate in the future.