Legislation, Leave, Superannuation and Public Holidays

Mandatory Vaccination under Public Health Orders in NSW

October 8, 2021

State governments in Victoria and New South Wales are moving into the next phase of their COVID-19 re-opening roadmap.

ER Strategies has received an overwhelming number of enquiries relating to government-imposed vaccination requirements for certain workers in NSW and VIC, following announcements by the respective state governments. We break down the available advice for NSW below.

To see the corresponding article relating to Victoria, please click here.

NSW:

Under the Reopening NSW roadmap at both 70 and 80 per cent, the listed freedoms will apply only to fully vaccinated adults (16+) and those with medical exemptions. This applies to both STAFF and PATRONS of places listed to reopen.

The current Public Health Order governing these requirements came into effect on 11 October 2021, and can be found here.

In NSW, it has been made clear that staff returning to, or continuing to work in certain settings, must be fully vaccinated (or in Regional NSW, at least having received 1 dose of COVID-19 Vaccine) in order to be able to return to the workplace. The only exemptions for staff in the defined settings are for staff aged under 16 years of age, or staff with NSW endorsed medical contraindication forms confirming their ineligibility for vaccination.

Please note, these requirements only exist in certain workplaces.

The Public Health Order states that the requirement for staff to be vaccinated extended to the following premises:

Division 5 Unvaccinated adults—additional restrictions

2.18 Premises closed to unvaccinated adults (1) The occupier of the following premises in the general area must take reasonable steps to ensure that an unvaccinated adult is not on the premises—

(a) higher risk premises,

(b) business premises that are hairdressers, spas, nail salons, beauty salons, waxing salons, tanning salons, tattoo parlours or massage parlours,

(c) recreation facilities (indoors),

(d) public swimming pools,

(e) information and education facilities,

(f) retail premises, but not critical retail premises.

(2) An unvaccinated adult must not be on premises referred to in subclause (1) in the general area.

(3) The occupier of higher risk premises in the general area must ensure that a person who is under 16 years of age and who is not a fully vaccinated person is not on the premises unless the person is accompanied by a person who is—

(a) a member of the person’s household, and

(b) a fully vaccinated person.

(4) This clause does not apply to a person who is on the premises for the following purposes—

(a) because of a service to assist vulnerable members of the public, for example a food bank or a service providing for the needs of homeless persons,

(b) to purchase food or beverages to be consumed off the premises,

(c) to attend a small funeral or memorial service or small wedding service,

(d) to use a click and collect service.

(5) In this clause— higher risk premises means the following—

(a) entertainment facilities,

(b) recreation facilities (major),

(c) hospitality venues,

(d) places of public worship,

(e) premises at which a significant event is being held, other than a small funeral or memorial service or small wedding service.

Definitions of hospitality venues, retail premises and non-critical retail premises are available in Schedule 6 (page 43) of the draft order. Hospitality and Retail are both defined to include ‘food and drink premises’, but there is a longer list of other premises included as well.

Note: For regional NSW, the following provisions apply:

This clause (reference to the above) also does not apply to a person who is on the premises if –
(a) the premises are outside Greater Sydney, and
(b) the person resides outside Greater Sydney, and
(c) the person has had only 1 dose of a COVID-19 vaccine, and
(d) the person is on the premises for the purposes of work.

For clients of ER Strategies, we have interpreted this to mean that staff in the following industries will only be able to allow vaccinated staff on the premises from Monday October 11th 2021.

Restaurants and cafes
Takeaway food and drink premises
Retail premises (non-critical).

Employers are responsible for only allowing vaccinated staff to return to work at this time. COVID Safe check-ins and proof of vaccination are required for staff and customers during this period. It is the responsibility of individual businesses to assess this and comply with the Public Health Order, or both individuals and businesses risk fines for breaching the health orders.

This requirement will likely remain in place until 1 December 2021, the date from which unvaccinated individuals will have the same freedoms of all other persons in NSW, including the ability for these individuals to return to work. Of course, this is subject to any industry specific public health orders, or company policy which may impose additional requirements. See our article on COVID-19 Vaccination Policies here.

Employers are required to allow unvaccinated staff to continue working from home, where this is reasonably practicable. Staff in roles which cannot facilitate work from home arrangements should be consulted about, for example, taking periods of paid annual/long service leave or unpaid leave, until the public health order preventing them returning to work lifts on 1 December 2021. After this point in time, these employees will be able to return to work.

If a business cannot facilitate a period of leave for an unvaccinated worker, it should seek advice from ER Strategies immediately as to its options.

The information above is subject to the release of the final public health order. ER Strategies has been contacting NSW Health daily for further information. We will update you as this information becomes available.

Summary:

We understand that this update may leave many of our clients with unanswered questions, and the information about is subject to further directions being released by the relevant State government.

We recommend that unless a business, separate to a public health order applying, has implemented a mandatory vaccination policy, that neutral language is continued to be used around the business’s stance on vaccination. Employers can indicate they are not mandating vaccination under these requirements, they are merely adhering to the government directions as imposed under the Public Health Order/s. Ensuring that language like this is used helps protect the employer from disputes raised by employees, who perceive their employer is imposing measures more restrictive than those under the health orders.

ER Strategies also strongly recommends that employers do not collect and retain copies of employee’s vaccination certificates, unless critical under a public health order. Instead employers, where possible, should request to sight a copy of the employee’s vaccination certificate in the first instance, and continue to utilise this method to avoid having to keep records of this information. If a copy of the employee’s vaccination certificate is required to be kept on file, clients of ER Strategies should reach out to request a copy of our ‘employee consent’ form, to ensure the business is meeting all requirements to maintain this information as required under the Privacy Act 1988.

If an employer, who is subject to a public health order, has an employee that refuses to comply with the order, we strongly recommend expert advice be sought before any action is taken. ER Strategies will be able to assist you navigate these difficult discussions and help you understand the possible options for your business.

Clients of ER Strategies can contact our team on 1300 55 66 37 in business hours (AEST – NSW) to raise any questions not addressed in this update.