Keeping COVIDSafe when mandates go
Sonya Black, LLB (Hons), B.Com, Special Counsel – Employment Law, Avant Law, QLD
Wednesday, 26 October 2022
As of 14 October 2022, it is no longer a legal requirement to self-isolate if you test positive for COVID. Public health directions also do not mandate face coverings and COVID vaccination for patients entering a medical practice.
What does this mean for practices in terms of imposing entry requirements to the practice? A practice can still require workers, patients and other people to comply with entry requirements, if the practice has determined that the requirement is a necessary work health and safety measure (i.e. has done a risk assessment in consultation with its staff) and the requirement is not discriminatory.
Work health and safety laws
Work health and safety laws require a person conducting a business or undertaking (PCBU) to take reasonable steps to ensure the health and safety of workers, patients and others at the workplace by eliminating or minimising risks, including the risks of COVID.
A medical practice is a PCBU. In addition, each doctor running their own medical business at the medical practice (via a contractor agreement, services agreement or other arrangement) is a PCBU.
Each PCBU must undertake a risk assessment (in consultation with workers) to determine what control measures are necessary to ensure health and safety in the workplace.
Workers, patients and other persons can be required to comply with entry requirements if the risk assessment identifies the requirements are necessary to ensure health and safety, unless doing so would amount to unlawful discrimination.
Each PCBU must consult, cooperate and co-ordinate activities with other PCBUs. Practically, this means the practice and each doctor working at the practice must consult with each other and work together to ensure health and safety. If an issue cannot be resolved between the parties, a party can ask a work health and safety inspector to attend the workplace to assist in resolving the issue.
Avoid discrimination claims
State and federal legislation prohibits discrimination on the basis of attributes, including disability. Many workers, patients and others are unable to comply with an entry requirement due to a physical or mental health issue.
- It is unlawful to discriminate against a person on the basis of the person’s disability by refusing them medical treatment or access to practice premises, or imposing conditions on their entry to premises or access to those services, unless:
- the discrimination is reasonably necessary to ensure health and safety
- it is not possible to make reasonable adjustments without imposing unjustifiable hardship on the party.
Avant has assisted many practices to manage discrimination claims arising out of practice entry requirements. Here are key steps to minimise the risk of a successful discrimination complaint:
1. Have a written policy about the entry requirements for workers, patients and others within your COVIDSafe Plan. The policy should include alternatives for those who are unable to comply with the entry requirements, such as:
- Employees may be able to work in an isolated part of the practice, or from home.
- Patients may be able to see their doctor via telehealth or at a time when the practice is not busy (such as the start or end of the day) or in an isolated area of the practice.
2. Ensure reception staff understand the policy and have worked out how to effectively communicate with patients and others about face coverings.
3. Have an escalation process for workers, patients and others who object to a face covering requirement. In most cases, the practice manager will be the main point of contact.
- Website: Ahpra Facilitating access to care in a COVID-19 environment: Guidance for health practitioners
- Website: Australian Human Rights Commission Face masks and federal discrimination law
- Website: Fair Work Ombudsman Coronavirus and Australian workplace laws