For many businesses and residents in NSW and Victoria, the double vaccination rates are being closely followed in anticipation for what is being referred to as “Freedom Day”.
The NSW and Victorian Governments have separately released roadmaps which detail the loosening of lockdown and stay at home restrictions in line with double vaccination targets (the roadmaps).
For NSW, the 70% target double vaccination rate was reached this week which will mean that from Monday 11 October 2021, certain venues, including hospitality venues, retail stores, gyms, hairdressers, and recreational facilities, can reopen for persons who are fully vaccinated. In Victoria, it is anticipated that the 70% target double vaccination rate will be reached on 26 October 2021. You can find more detailed information on the current roadmaps here: NSW and Victoria.
In NSW, the Public Health (COVID-19 General) Order 2021 (NSW) dated 3 October 2021 has been gazetted and is set to commence on 11 October 2021 (NSW PHO). The NSW PHO sets out the restrictions (including persons per square metre rules) at the 70% double vaccination target.
If employers can and choose to reopen on 11 October 2021 in NSW, or after 26 October 2021 in Victoria (the reopening dates), there are a number of practical issues and obligations that employers must consider. It is critical that employers develop strategies to manage the transition between the phased reopening dates and when there will be no distinction between a person’s vaccination status.
In this e-update, we will assist employers by looking at the potential issues that may arise during this interim reopening period and beyond.
The roadmaps requires that only fully vaccinated persons will be able to enter certain settings. This will mean that the requirement to be fully vaccinated will be extended to employees, clients, customers, contractors and other visitors.
In NSW and Victoria, a fully vaccinated person is a person who has received 2 doses of a COVID-19 vaccine or has a medical contraindication certificate (in the approved form) that has been issued to that person.
Generally, the roadmaps are based on the requirement that only persons who are fully vaccinated are permitted to enter certain premises and other settings on the reopening dates.
In practical effect, there are number of issues that employers must consider:
As noted above, certain businesses will be permitted to reopen under the roadmaps to only fully vaccinated persons. This will mean that employees that are permitted to return to work will also be required to be fully vaccinated.
For certain workers, a COVID-19 vaccination may be mandatory. Employers should check public health orders or directives which may apply to any of their employees and if so, they must not allow the employee to work until they have received their full vaccination. You can find more information on vaccination requirements for workers here: NSW and Victoria.
Not all employees will be required to return to the workplace or office.
In NSW, the roadmap states that employees must continue to work from home on the reopening date if it is reasonably practicable. It is not until a later date that employers will be able to require employees to return to the office at their discretion.
Similarly, in Victoria, the roadmap states that employees must also continue working from home on the reopening date. It is not until Phase C, which has an indicative date of 5 November 2021, that employees may attend the workplace if they are fully vaccinated.
The requirement will be on the business to ensure that persons on their premises are fully vaccinated. Employers will therefore be required to ascertain the vaccination status of employees before they are permitted to work.
The vaccination status (and details of any medical conditions that may exempt vaccination) of an individual is sensitive health information under the Privacy Act 1988 (Cth) and higher privacy protections apply. Under the Australian Privacy Principles (APPs), employers can only collect the health information of employees if the employee consents and the collection is reasonably necessary to one or more of the employer’s functions or activities.
It is good practice for businesses to have in place safety plans relating to managing the risks of COVID-19 in the workplace. Employers should discuss and train employees on their COVID-19 safety plans and return-to-work strategy.
In NSW, certain businesses must have a COVID-19 safety plan which addresses the matters required by the approved COVID-19 Safety Checklist. In Victoria, a COVIDSafe Plan is mandatory for all businesses with on-site operations. You can find more information on COVID-19 safety plans here: NSW and Victoria.
In terms of a return-to-work strategy, there is ample material on the phased reopening structure in both NSW and Victoria. Employers should discuss this with their employees and educate them on who can enter their premises, the requirement of checking vaccination statuses (and how to check) and the support available for dealing with difficult customers.
On dates later this year, the roadmaps will enter their final phase where it is intended that there will be no distinction between a fully vaccinated person and an unvaccinated person.
Before this date, businesses must consider how to handle access to their premises by non-vaccinated people and what measures will be in place to make this transition.
The phased reopening plans specify that only fully vaccinated people are permitted to access certain premises. For businesses to comply with the public health orders or directives, the vaccination status of visitors and clients will need to be checked.
The vaccination check is done by looking at the COVID-19 digital certificate or immunisation history statement.
One way to manage the obligation to check the vaccination status of visitors, clients and customers is to have clear signage or messaging about the requirement to check-in at all entry points and to have vaccination status checked before entry.
Setting out and disclosing conditions of entry before actual entry is a way to notify persons entering your premises to view, acknowledge and accept the conditions prior to entering the premises.
Some examples of how to disclose that entry is limited to fully vaccinated people may include:
Clearly disclosing the requirement to be fully vaccinated in order to enter your premises sets out your expectation to customers and provides them with notice that they will be turned away if they refuse to show proof of their COVID-19 vaccination status.
Of course, the other side of this is actually checking the vaccination status of customers, clients and visitors. While it is hoped that there will be an overall understanding of the need for businesses to check a person’s vaccination status, as noted above, the vaccination status (or reason for exemption) is sensitive health information.
Businesses should ensure that their privacy policy is up to date to address the APP requirements regarding the collection of sensitive information and make it known (or have it readily available) to its customers, clients, contractors and other visitors.
Bookings and reservations are another mechanism which businesses can use to comply with the public health orders. Businesses may want to consider requiring customers or clients to use a booking or reservation service before attending their premises.
This would mean that the business can control the density levels in the premises, pre-emptively check the customer or client’s vaccination status and also disclose any conditions of entry policy prior to them attending the premises.
Before the 1 December 2021 in NSW or later for Victoria, the roadmaps still allow unvaccinated persons to use Click and Collect services.
Businesses should carefully consider and plan how they can manage the interaction between unvaccinated customers, vaccinated customers and employees. Examples of managing this include offering Click and Collect services only in a designated area (like a car park) or during certain time periods.
The roadmaps will be implemented by way of public health orders and restrictions. Accordingly, there will be fines to businesses who refuse or fail to comply with the health orders.
