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NSW makes COVID-19 vaccination mandatory for staff and customers in non-essential retail, hospitality and leisure businesses

From 18 October 2021, only adults who are fully vaccinated are allowed to work in or visit all businesses that are allowed to open in NSW. Unvaccinated adults are allowed only to work in or visit essential retail premises such as chemists and supermarkets and businesses with take away or click and collect.

This rule was introduced when NSW reached the 80% fully vaccinated stage for adults for COVID-19.

According to the NSW Government Guide Vaccination rules for businesses, their staff and customers –

The vaccination rules require businesses operators to take reasonable steps to ensure people who are not fully vaccinated do not enter their premises.

Vaccination rules apply to staff working at certain businesses, as well as customers.

The NSW Government has made business operators (occupiers) responsible for enforcing the vaccination rules by making them liable for substantial fines if they do not prevent unvaccinated people from entering their premises.

In anticipation of reaching the 90% fully vaccinated stage, the NSW Government has announced that on 1 December 2021 “most venues will be moving to the 2 sqm rule, and people who are not fully vaccinated will have greater freedoms.” No details have been provided of the “greater freedoms”.

The Public Health Order

The policy of excluding unvaccinated adults / not fully vaccinated persons from non-essential premises is a deliberate policy of the NSW Government.

In the words of Health Minister Brad Hazzard: “All roadmap freedoms will continue to be for fully vaccinated people only.”

The vaccination rules are found in the Public Health (COVID-19 General) Order 2021 (made on 3 October 2021, last amended on 20 October 2021) (the “Public Health Order”).

The Public Health Order was made under the Public Health Act 2010 (NSW) to address the risk to public health from COVID-19.

These were the reasons given in the Public Health Order:

1.3 Grounds for concluding that there is a risk to public health

The basis for concluding that a situation has arisen that is, or is likely to be, a risk to public health is as follows—

  1. public health authorities both internationally and in Australia have been monitoring and responding to outbreaks of COVID-19, which is a condition caused by infection with the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2),
  2. COVID-19 is a potentially fatal condition and is highly contagious,
  3. a number of cases of individuals with COVID-19 have been confirmed in New South Wales and other Australian jurisdictions, including by means of community transmission, and there is an ongoing risk of continuing introduction or transmission of the virus in New South Wales,
  4. there are available vaccines that substantially reduce the risk of infection, transmission, severe illness and death resulting from SARS-CoV-2,
  5. he proportion of the total population in New South Wales that remains unvaccinated is significant enough to represent a substantial risk and burden from infection and transmission of SARS-CoV-2 in the community,
  6. in particular the risk and burden is from and among people who remain unvaccinated because these people are more likely to be infected, more at risk of severe illness and death resulting from infection with SARS-CoV-2, and more likely to transmit the infection to others, than fully vaccinated people.

The validity of the Minister’s power to make the Public Health Order was recently upheld by the Supreme Court of NSW in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (Beech-Jones J) (on 15 October 2021).

The proceedings were brought to invalidate the Public Health Order by persons who stated that they had made “an informed choice not to vaccinate” (not because of a medical contraindication).

The Court found that although the Public Health Order “significantly affects the freedoms of the citizens of this State and imposes greater burdens on those who are not vaccinated”, the order made was “a genuine exercise of the Minister’s power”, was “informed by policy considerations” and was “not unreasonable”.

Fully Vaccinated persons and other definitions

Schedule 6 of the Public Health Order contains these definitions:

fully vaccinated person means a person who –

  1. has had 2 doses of a COVID-19 vaccine, or
  2. has a medical contraindication certificate issued to the person, or
  3. has a medical contraindication recorded on the Australian Immunisation Register that prevents the person from receiving any approved COVID-19 vaccine available in New South Wales.

unvaccinated adult means a person who -

  1. is more than 16 years of age, and
  2. is not a fully vaccinated person.

vaccination evidence for a person means -

  1. evidence from the Australian Immunisation Register that the person -
    1. has had 2 doses of a COVID-19 vaccine, or
    2. has a medical contraindication that prevents the person from receiving any approved COVID-19 vaccine available in New South Wales, or
      Example - An online immunisation history statement, a COVID-19 digital certificate from the Australian Immunisation Register or information displayed on the Service NSW mobile phone application.
  2. a medical contraindication certificate issued to the person.

medical contraindication certificate means a certificate issued by a medical practitioner -

  1. in a form approved by the Chief Health Officer, and
  2. certifying that because of a specified medical contraindication, the person to whom the certificate has been issued cannot have any approved COVID-19 vaccine available in New South Wales.

The reasonable steps a business must take are best summarised in the NSW Government Guide:

“Reasonable steps include:

  • Display vaccination rules from NSW Health in a prominent position, such as the entrance to your premises
  • Ask to see a person’s vaccination evidence, or for a child under 16 years of age, evidence of their name and address.

Please be aware that a person may not wish to show you their vaccination evidence.
If you do not believe that a person is fully vaccinated, you can ask them to leave. If the person refuses to leave, you can notify police.

Anyone who is required to be vaccinated to be at a business premises must produce their vaccination evidence to a police officer or authorised officer if requested. For children under 16, they must produce evidence of their name and address to a police officer or authorised officer.”

The business premises

Business premises are either non-essential or critical retail. This is a list:

Non-essential business premises closed to unvaccinated adults (staff and customers):

  • Retail premises which are not critical retail premises (as defined below), are open only for click & collect or deliveries of goods purchased online or by phone
  • Leisure facilities – entertainment facilities, indoor recreation facilities such as public swimming pools, gaming lounges, betting agencies, dance, yoga, pilates, gymnastics or martial arts studios, gyms, squash courts, health studios, skating rinks,
  • Sporting events and major recreation facilities - sports stadiums, racecourses, showgrounds, theme parks, zoos, aquariums,
  • Personal services premises – hairdressers, spas, nail salons, beauty salons, waxing salons, tanning studios, tattoo parlours or massage parlours, sex services and strip clubs
  • Hospitality venues - food and drink premises, a pub, a micro-brewery, a registered club, a small bar, cellar door, casino
  • Information and education facilities
  • Merchandise markets, but not food markets
  • National Trust and Historic Houses Trust properties

Critical retail premises open to unvaccinated adults (staff ad customers):

  • chemists and pharmacies,
  • supermarkets and grocery shops,
  • shops that predominantly sell food or drinks, such as butchers, bakeries, fruit shops and delicatessens, kiosks, but not restaurants or cafes,
  • shops that predominantly sell office supplies, pet supplies, newspapers, magazines or stationery, alcohol, maternity or baby supplies, medical or pharmaceutical supplies, repair shops for mobile phones,
  • garden centre and plant nurseries,
  • hardware and building supplies, landscaping material supplies, timber yards
  • rural supplies
  • vehicle hire but not vehicle sales

For details, go to the Public Health Order (clause 2.18, the definitions in Schedule 6) and the NSW Government Guide:

Notes

  1. If the business premises are in a stay at home area they are not open to the public unless they sell food or beverages off the premises.
  2. All persons visiting business premises must wear masks except when eating or drinking, engaging in physical exercise, in their hotel room, in school as a student, in hospital as a patient, in aged care as a resident.
  3. All persons using public transport, in indoor areas (such as while shopping), and who are working at a hospitality venue must wear masks.
  4. All businesses must comply with the Approved COVID-19 safety checklist (See Schedule 4) for their business.
  5. The Public Health Order protects businesses from legal liability towards unvaccinated adults who are denied entry to non-essential business premises.

How should businesses treat unvaccinated staff?

Businesses should strongly recommend that unvaccinated adult staff obtain vaccination advice from a general practitioner.

If the staff decide to remain unvaccinated (without having a medical contraindication certificate), the business may either put them on paid or unpaid leave, or give notice to terminate their employment, or restrict them to working from home.

As to unvaccinated staff in critical retail premises, the trend amongst large retail businesses is to adopt a vaccination policy along the lines of the Public Health Order.

One thing is clear – unvaccinated staff (without a certificate) are not able to come to work at the business premises of non-essential businesses until at least 1 December 2021 in NSW.

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