Member Article

From 4 August 2021, there are differing restrictions placed on the ability of workers in locked down areas in Queensland to attend work in a hospital, aged care or disability setting, even if that work would ordinarily be essential work.

Importantly, the Direction is one of the first in Australia to draw a distinction between a vaccinated person (being a person who has received the prescribed doses of a TGA approved COVID-19 vaccination) and an unvaccinated person.

The required action for hospital, aged care or disability providers located in a locked down area in South-East Queensland or for staff travelling from a locked down area to attend essential work, is to ascertain vaccination status and to conduct an assessment in accordance with the requirements before that person is permitted to attend.

There have previously been some restrictions relating to people attending hospitals and residential aged care facilities in Queensland on the basis of vaccination status, and in relation working directly with high risks persons (such as returning travellers) in other jurisdictions. However, this is one of the first public health directions in Australia to broadly differentiate between persons on the basis of vaccination status, and place differing restrictions on people on this basis.

It is possible that arising from the ongoing Delta outbreaks across Australia, these kind of restrictions that differ on the basis of vaccination status will be replicated in other States outside Queensland.

Restrictions for locked down areas

The Queensland Chief Health Officer has published the Restrictions for Locked Down Areas (South East Queensland) Direction (No. 4) (Direction) which has effect from 5.24am on 4 August 2021.

The Direction applies to the 11 Local Government Areas in South East Queensland that are currently in lock-down. It applies to people:

• in a locked down area in South-East Queensland;
• who have been in a locked down area from 1.00am on 31 July 2021; or
• who reside in the same household as a person who has been in a locked down area from 1.00am on 31 July 2021.
  
  

Under the Direction, a person in the locked down area is not permitted to leave their principal place of residence for purposes other than permitted purposes.

A person who has been in the locked down area during the lockdown period is also subject to the restrictions until 14 days have passed.

Permitted purposes in order to leave principal place of residence

The Direction provides that a permitted purpose to leave their principal place of residence includes where a person is required to perform essential work or volunteering or conduct an essential business, activity or undertaking, other than in a restricted vulnerable facility. (The more specific requirements for a restricted vulnerable facility are set out below).

This is only permitted where the work cannot reasonably be performed from a person's principal place of residence.

Essential work or volunteering is defined in the Direction as work or volunteering that is urgently required for safety reasons, emergency repairs, or that is necessary to maintain essential services and supplies to the community, or part of a community. It includes but is not limited to nurses, doctors, healthcare providers, plumbers and electricians. This would extend to all workers required to keep a vulnerable facility operating, and providing usual care and other services to the residents and patients in vulnerable facilities.

Although the Direction permits a person to leave their home in order to perform essential work or volunteering, or essential business, activity or undertaking, this does not extend to these purposes when the purpose is to be carried out at a restricted vulnerable facility. This means that although previously a person in the locked down area would be considered an essential worker if they were working at a restricted vulnerable facility, this is no longer the case when that person is within the locked down area, with the considerations set out below now applying.

Restricted vulnerable facility – vaccinated workers

Restricted vulnerable facilities are described as hospitals, residential aged care facilities and disability accommodation services within the locked down area, and as defined in the Queensland COVID-19 Restricted Areas Direction (No. 19).

A person who is vaccinated and lives within the locked down area is able to leave their principal place of residence to provide essential work at a restricted vulnerable facility that is located within any locked down area.

A vaccinated person is able to provide essential work at a vulnerable facility outside of the locked down areas, where:

• that facility is the worker's 'predominant place of work'; or
• where the work is necessary to prevent a critical workforce shortage at the facility; or
• to provide 'essential health or medical care' that cannot be provided by another person outside of the locked down areas.
  
  

Critical workforce shortage means an immediate or emergency critical workforce shortage in a vulnerable facility that the operator of the vulnerable facility considers may impact patient or resident care or the effective operation of the facility. The example given is that a critical workforce shortage may be a shortage of more than 10 per cent of staff for a critical emergency situation, or for a sustained period of seven days or more. However this will depend on the size of the facility and baseline staffing levels (including consideration of skills mix and rostering).

In all cases, the facility must carry out a risk assessment in relation to permitting the vaccinated person to work at the facility and to approve that person working at the facility.

Restricted vulnerable facility – unvaccinated workers

A higher threshold is placed on unvaccinated workers, and in particular an unvaccinated worker can only work at a restricted vulnerable facility that is either:

• located within the same local government area as that person's principal place of residence; or
• is located outside of the same local government area as their principal place of residence, but still within the locked down areas, in the following circumstances:
  • if the facility is the persons predominant place of work; or
  • if the work is necessary to prevent a critical workforce shortage at the facility; or
  • to provide essential health or medical care that cannot be provided by another person who lives within the local government area.
    
    

In all cases, the facility must carry out a risk assessment in relation to permitting the vaccinated person to work at the facility and to approve that person working at the facility.

Key takeaways

For hospital operators, residential aged care and disability providers in the locked down area relying on workers from the locked down area within Queensland, it will be important to be aware of the vaccination status of people relied on to ensure the ongoing operation of your facilities. Where a vaccinated, or unvaccinated person is being relied upon within the locked down area, a risk assessment needs to be undertaken to ensure that it is appropriate to have people from within the locked down area continuing to work in your facilities.

There are significant penalties for not complying with the Directions. Accordingly it is important to make sure that if a risk assessment has occurred in relation to a vaccinated or unvaccinated worker working at your facility, that the risk assessment can be evidenced. Additionally, it will be important for operators of vulnerable facilities to be aware of where their workers are travelling from and the vaccination status of workers, to ensure such a risk assessment can take place.

These restrictions highlight the importance for operators of vulnerable facilities to communicate with their workforce to ensure a high uptake of the COVID-19 vaccine and in order to ensure that they are able to continue providing essential care services, and maintain operations. It is a possibility that restrictions on working with, or in close proximity with vulnerable people will become more prevalent, and a high level of vaccination within workforces is the only way to ensure continuity of care and services.

For aged care providers, the above is separate to the direction mandating that aged care workers receive their first dose of a COVID-19 vaccine that will be a requirement from mid-September 2021.

Please do not hesitate to contact us, if you would like to discuss this update, or the public health directions presently in force in Queensland, and throughout Australia more generally.