Mandatory vaccinations in the workplace: What do you need to consider
From 17 December 2021, many Queensland locations and businesses will be restricted to fully vaccinated customers, visitors, and staff.
Last week, Akyra’s Managing Director Margaret Goody joined a panel discussion at the Regional Development Australia (RDA) Moreton Bay Business and COVID breakfast, where leading experts discussed the most important considerations for businesses as Queensland prepares for these restrictions.
Margaret was joined by local experts including Akyra associates Jeanette Jifkins of OnyxLegal and Michelle Pitman of Virtual Safety Manager, alongside other experienced business owners and key stakeholders in the region.
Although not positioned to change or influence government or regulations, the panel provided information and advice to support businesses and employers navigate the complex and changing health directive of the Queensland Government, from 17 December 2021.
The robust discussions and information surrounded employment, safety, privacy, regulations, and liability considerations, particularly pertaining to mandatory vaccinations of both customers and staff, in some workplaces including hospitality venues. Please visit here for a full list of affected businesses.
But what does all this mean for YOU, and what should you consider if your business is impacted by the mandatory vaccination in your workplace?
PRIVACY LAWS AND VACCINATION STATUS
For Customers
From 17 December 2021, many Queensland locations and businesses will be restricted to fully vaccinated customers and visitors – i.e. customers who are 16 years or over, must carry proof of their vaccination status and be prepared to show this upon request.
The updated Check-In Qld app allows people to check-in and display their COVID-19 digital certificate at the same time.
To enter a mandated business, staff may ask to see a customer’s COVID-19 digital certificate, which will show their name, date of birth and vaccination status. Similarly, they may display their COVID-19 vaccination status by showing a printed copy of their immunisation history statement.
A business is not permitted to take a copy of this vaccination status.
For Staff
From 17 December, all staff working in a mandated business are required to be fully vaccinated.
You will be required to collect, hold and store employee vaccination information.
This can be done in several ways – e.g.:
- merely sighting vaccination information and making a record against that employee on a register that they comply with the relevant public health order or direction; or
- you may collect and store vaccination information but should be aware of the specific obligations around maintaining privacy and security of the information as set out below.
As a general guide, you should seek to collect, use or disclose the minimum amount of vaccination information required to meet their legal obligations.
WHAT PRIVACY CONCERNS SHOULD YOU BE AWARE OF WHEN COLLECTING VACCINATION INFORMATION?
You need to be mindful that vaccination information is considered sensitive information under the Privacy Act.
Once you have collected the vaccination status information (including COVID-19 certificates or records downloaded from MyGov containing an individual’s healthcare identifier), it may form part of an ’employee record’ and be exempt from the Privacy Act.
Notwithstanding this exemption, the Australian Information Commissioner has indicated they consider you should treat that information consistently with the security of information – i.e. requires you to take reasonable steps to protect that information from misuse, interference, loss, unauthorised access, modification, or disclosure.
WHAT CAN YOU DO TO MITIGATE ANY PRIVACY CONCERNS ARISING FROM THE COLLECTION OF VACCINATION INFORMATION
If your business collects and stores vaccination information, reasonable steps and strategies that will assist to mitigate privacy risks include:
- improved governance, culture, and training in relation to the safe collection, storage, and disclosure of the information;
- introduction of internal practices, procedures, and systems that underpin effective privacy compliance;
- information security practices and procedures which assist to protect the information as required under APP 11 and section 27 of the HI Act;
- review security protocols to regulate access to the relevant information by authorised personnel only;
- appropriate use of third-party providers with appropriate contractual obligations in place; and
- implementing a process for the destruction and de-identification of personal information when it is no longer required.
You need to consider how best to implement the above in their workplace if collecting and storing vaccination information.
NON-EMPLOYEES
In addition to collecting information from employees, you may also be required to collect information from your contractors and/or visitors to your premises or offices.
In this context, it is particularly important for employers covered by the Privacy Act to be aware that the ’employee records’ exemption does not apply to information obtained from prospective employees, contractors, subcontractors, or volunteers. As such, that information must be collected, held, and used in compliance with the Privacy Act and the APPs.
For more information about privacy laws and employees’ vaccination status, please click here
WHAT IF NO PUBLIC HEALTH ORDER APPLIES TO MY BUSINESS… CAN VACCINATION STILL BE MANDATED?
You may be considering whether a workplace policy about coronavirus vaccinations is necessary for your workplace.
Before implementing a new workplace, policy or changing an existing policy about vaccinations, you should consider your workplace and employees’ circumstances and whether you need legal advice about your specific obligations.
Most workplaces are covered by either an award, enterprise agreement, or another registered agreement. All awards and enterprise agreements have a consultation clause requiring you to consult with employees and any representatives when you intend to implement significant workplace changes. Some registered agreements, employment contracts, or existing workplace policies may also require employers to consult.
This means that, before introducing or changing a workplace policy about vaccinations, you should review any applicable award, agreement, employment contract, or existing workplace policy to find out:
- whether you need to consult under that document (as well as needing to consult under work health and safety laws)
- who you need to consult with (including any employee representatives or unions)
- how you need to consult about the proposed workplace change.
Under work health and safety (WHS) laws, employers also must consult with employees and their health and safety representatives (HSRs) about possible control measures to address WHS risks. This can include:
- consideration of a new policy about coronavirus vaccinations
- assessing risks of COVID-19 at work and how to minimise them
- changes to an existing vaccination policy
You must also provide employees and their HSRs a reasonable opportunity to express their views about the policy changes. You need to take these views into account when making a decision and advise employees and HSRs of your decision.
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to vaccinations in the workplace. Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
Sources:
www.lexology.com, November 2021, www.allens.com.au September 2021, https://www.hrmonline.com.au, November 2021.
