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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—
- 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),
- COVID-19 is a potentially fatal condition and is highly
contagious,
- 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,
- there are available vaccines that substantially reduce
the risk of infection, transmission, severe illness and
death resulting from SARS-CoV-2,
- 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,
- 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 –
- has had 2 doses of a COVID-19 vaccine, or
- has a medical contraindication certificate issued to the
person, or
- 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 -
- is more than 16 years of age, and
- is not a fully vaccinated person.
vaccination evidence for a person means -
- evidence from the Australian Immunisation Register that
the person -
- has had 2 doses of a COVID-19 vaccine, or
- 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.
- a medical contraindication certificate issued to the
person.
medical contraindication certificate means a certificate
issued by a medical practitioner -
- in a form approved by the Chief Health Officer, and
- 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
- 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.
- 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.
- All persons using public transport, in indoor areas
(such as while shopping), and who are working at a
hospitality venue must wear masks.
- All businesses must comply with the Approved COVID-19
safety checklist (See Schedule 4) for their business.
- 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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