On 9 September 2021, the NSW Government unveiled its roadmap to freedom for the fully vaccinated population. Premier Gladys Berejiklian announced that stay-at-home orders for adults who have received both doses of the COVID-19 vaccine will be lifted from the Monday following the 70 percent vaccination target being met. While this is currently estimated to be 18 October 2021, we will need wait and see how the rollout proceeds over the next month. Importantly, the Premier stated in unequivocal terms that the medically eligible but unvaccinated population would not be able to take advantage of the freedoms triggered by the vaccination milestone being reached. Although employers may be relieved that operations can soon recommence, businesses need to ensure that they make use of this time to take preparatory steps and implement measures to ensure that they are complying with their legal obligations once the stay at home orders are lifted.
At this stage, the NSW Government has advised that fully vaccinated adults will be able to enjoy the following freedoms, which will come into effect on the Monday after NSW hits the 70 percent double dose target:
While employers and employees of affected industries will, of course, welcome the long-awaited roadmap to freedom, there are significant legal and logistical questions businesses need to confront now before operations resume.
Firstly, businesses must decide how they will enforce proof of vaccination requirements for their customers and patrons. Depending on the nature of the business, employers may need to turn their minds to whether added security measures are required for checking vaccination status. Businesses also need to turn their minds to how they will ensure that they are upholding their obligations under privacy law and avoid attracting significant liability by way of collecting sensitive health information.
Secondly, it is imperative that employers undertake a risk assessment with respect to COVID-19 before recommencing operations given the significant changes to the risk environment since the Delta outbreak in June 2021. Businesses should not rely on outdated pre-Delta risk assessments for many reasons, including that the risks from Delta are unique (e.g. increased transmissibility) and further, new controls (such as a mandatory vaccination policy and rapid antigen testing) are now available and must be considered by the business. Further, while it may appear that the risk of exposure to COVID-19 will be mitigated once the vaccination target is reached, businesses must still consider how they will manage unvaccinated employees or those with a valid exemption being on the premises.
Finally, employers need to plan now how they will manage unvaccinated employees, whether or not they have a mandatory vaccination policy in place for the workplace. There are many potential pitfalls in this area, such as inadvertently disclosing an employee’s vaccination status or contravening the Anti-Discrimination Act 1977 (NSW). Employers need to balance the rights of workers who have valid medical exemptions and cannot receive a vaccine, with the health and safety obligations they owe to their clients and patrons.
While there is much to look forward to in the coming months as NSW continues steadily towards the 70 percent target, there are added employment, safety, discrimination and privacy considerations that businesses must plan for before reopening their doors. For all employers, the best course forward is to use this time now to adopt a tailored, risk-based approach, in consideration of all the relevant circumstances and informed by a site-specific risk assessment, when determining the how operations will resume once the vaccination milestone has been met.
If you would like to discuss how your business will manage its return to work plan, including in relation to health and safety controls against the transmission of COVID-19, whether your business can lawfully mandate vaccination or how you will manage health information (such as vaccination status), please do not hesitate to contact us.