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

From October 18, 2021, only fully vaccinated adults will be able to work or visit all businesses licensed to open in NSW. Unvaccinated adults are authorized alone to work or visit essential retail premises such as pharmacies and supermarkets and businesses with take out or click and collect. This rule was introduced when NSW reached the stage of 80% complete vaccination for adults.

According to the New South Wales Government Guide Vaccination rules for companies, their staff and their customers

Vaccination rules oblige business operators to take reasonable measures to ensure that people who are not fully immunized do not enter their premises.

Vaccination rules apply to staff working in some companies, as well as to customers.

The NSW government has made commercial operators (occupiers) accountable for enforcing vaccination rules by making them liable to substantial fines if they do not prevent unvaccinated people from entering their homes. local.

In anticipation of reaching the 90% complete vaccination stage, the government of New South Wales has announced that December 1, 2021 “Most sites will switch to the 2 m² rule, and people who are not fully vaccinated will have more freedom.” No details were provided on the “greater freedoms”.

The public health decree

The policy of excluding unvaccinated adults / not fully immunized from non-essential premises is a deliberate policy of the Government of New South Wales.

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

The vaccination rules can be found in the Public Health Decree (General COVID-19) 2021 (done on October 3, 2021, last amended on October 20, 2021) (the “Public Health Decree”).

The public health decree was issued by virtue of the Public Health Act 2010 (NSW) to address the public health risk of COVID-19.

Here are the reasons given in the public health decree:

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

The basis for concluding that a situation has occurred which is, or is likely to be, a risk to public health is as follows:

(a) international and Australian public health authorities are monitoring and responding to outbreaks of COVID-19, which is a condition caused by infection with severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2),

(b) COVID-19 is a potentially fatal and highly contagious disease,

(c) a number of cases of people with COVID-19 have been confirmed in New South Wales and other Australian jurisdictions, including through community transmission, and there is an ongoing risk of introduction or transmission virus continues in New South Wales,

(d) there are vaccines available which significantly reduce the risk of infection, transmission, serious illness and death resulting from SARS-CoV-2,

(e) the proportion of the total population of New South Wales that is not vaccinated is large enough to represent a substantial risk and burden of infection and transmission of SARS-CoV-2 in the community,

(f) in particular, the risk and burden come from and among people who are not vaccinated because these people are more likely to be infected, more at risk of serious illness and death resulting from infection with SARS -CoV-2, and more likely to pass the infection on to others than fully vaccinated people.

The validity of the minister’s power to issue the public health order was recently upheld by the NSW Supreme Court in Kassam against Hazzard; Henry vs. Hazzard [2021] NSWSC 1320 (Beech-Jones J) (October 15, 2021).

The proceedings were initiated in nullity of the Public health decree by people claiming to have made “an informed choice not to vaccinate” (not because of a medical contraindication).

The court concluded that although the public health ordinance “significantly affects the freedoms of the citizens of this state and imposes greater burdens on those who are not vaccinated”, the order issued was “a real exercise of the power of the Minister ”, was“ politically informed ”and was“ not unreasonable ”.

Fully immunized persons and other definitions

Annex 6 of the public health decree contains these definitions:

fully vaccinated person means a person who –

(a) received 2 doses of a COVID-19 vaccine, or

b) has a medical certificate of contraindication issued to the person, or

(c) has a medical contraindication registered with the Australian Vaccination Registry that prevents the person from receiving any approved COVID-19 vaccine available in NSW.

unvaccinated adult means a person who –

(a) is over 16 years of age, and

(b) is not a fully immunized person.

proof of vaccination for a person means –

(a) proof from the Australian Immunization Registry that the person –

(i) received 2 doses of a COVID-19 vaccine, or

(ii) has a medical contraindication that prevents the person from receiving an approved COVID-19 vaccine available in New South Wales, or

Example – An online vaccination history statement, a COVID-19 digital certificate from the Australian Vaccination Registry or information displayed on the Service NSW mobile phone app.

b) a medical certificate of contraindication issued to the person.

medical certificate of contraindication means a certificate issued by a doctor –

(a) in a form approved by the Chief Medical Officer of Health, and

(b) certifying that due to a specified medical contraindication, the person to whom the certificate was issued may not have any approved COVID-19 vaccine available in NSW.

The reasonable measures a business must take are best summed up in the Guide to the Government of New South Wales:

“Reasonable measures include:

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

Please note that a person may not wish to show you their proof of vaccination.

If you think a person is not fully immunized, you can ask them to leave. If the person refuses to leave, you can notify the police.

Anyone who needs to be vaccinated to be in a business premises must show proof of vaccination to a police or authorized officer upon request. For children under the age of 16, they must produce proof of their name and address to a police or authorized officer.

Commercial premises

Critical retail locations are open to unvaccinated adults. Non-essential businesses are closed to unvaccinated adults (which includes both staff and customers).

It’s a list.

Non-essential business premises closed to unvaccinated adults:

  • Retail premises which are not critical retail premises (as defined below), are only open for click & collect or deliveries of goods purchased online or by telephone
  • Leisure facilities – entertainment facilities, indoor leisure facilities such as public swimming pools, game lounges, betting companies, dance, yoga, pilates, gymnastics or martial arts studios, gymnasiums, squash courts, health studios, ice rinks,
  • Major sporting events and leisure facilities – sports stadiums, racetracks, exhibition grounds, theme parks, zoos, aquariums,
  • Personal service spaces – hairdressers, spas, nail salons, beauty salons, waxing salons, tanning studios, tattoo or massage parlors, sex services and strip clubs
  • Reception areas – catering premises, a pub, a micro-brewery, a registered club, a small bar, a cellar, a casino
  • Information and education equipment
  • Commodity markets, but not food markets
  • National Trust and Historic Houses Trust properties

VSritic business premises open to unvaccinated adults:

  • pharmacies and pharmacies,
  • supermarkets and grocery stores,
  • stores that primarily sell food or drink, such as butchers, bakeries, fruit and delicatessens, kiosks, but not restaurants or cafes,
  • stores primarily selling office supplies, pet supplies, newspapers, magazines or stationery, alcohol, maternity or baby supplies, medical or pharmaceutical supplies, phone repair shops portable,
  • garden center and nurseries,
  • building hardware and supplies, landscaping material supplies, lumberyards
  • rural supplies
  • vehicle rental but no vehicle sales

For more details, see the Public Health Decree (Article 2.18, definitions in Annex 6) and the Guide to the Government of New South Wales:

  1. If the business premises are in a stay-at-home area, they are not open to the public unless they sell food or drink outside the premises.
  2. All people visiting business premises should wear masks except when eating or drinking, exercising, in their hotel room, at school as a student, in hospital as a patient, in care of the elderly as a resident.
  3. All people using public transport, in interior areas (such as when shopping) and who work in a reception area must wear masks.
  4. All businesses must adhere to the approved COVID-19 security checklist (see Appendix 4) for their business.
  5. The public health ordinance protects businesses from legal liability to unvaccinated adults who are denied entry to non-essential business premises.

How should companies treat unvaccinated staff?

Companies should strongly recommend that unvaccinated adult staff seek vaccination advice from a general practitioner.

If the staff decides to remain unvaccinated (without a medical certificate of contraindication), the company must either put them on paid or unpaid leave, or give notice to terminate their employment, or restrict them to teleworking.

One thing is clear – unvaccinated (unlicensed) staff cannot come to work at non-essential business premises until at least December 1, 2021 in New South Wales.

As for unvaccinated staff in critical businesses, the trend in large retail businesses is to adopt a policy in line with the public health decree.

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