A new plan to reopen pubs, restaurants and retailers in New South Wales for fully vaccinated customers in the coming weeks has largely been welcomed by the affected industries, but there are significant legal and logistical questions confronting businesses about how they will manage their new obligations.
As part of the “roadmap to freedom” unveiled by the Berejiklian government on Thursday, hospitality businesses including pubs, restaurants and cafes, as well as retail settings, entertainment venues and health and beauty services, will be able to reopen after the 70% double dose vaccination target is achieved.
For the businesses allowed to reopen, all staff and patrons must be fully vaccinated as a condition of operation, in addition to following density limits.
The NSW government has given little insight into how mandates on vaccinations for retail staff and customers would be enforced, other than NSW chief health officer Kerry Chant suggesting on Thursday that it would fall to businesses to police the changes.
The NSW government has previously said it will incorporate vaccination proof into the Services NSW smartphone application, which is the same app used to check into venues with QR codes. It appears police and regulatory checks will also be needed to detect non-compliance.
Paul Zahra, the chief executive of the Australian Retailers Association, welcomed the ability for businesses to reopen as a “massive reward”.
Zahra said that while the vaccine requirements for restaurant and beauty service customers could be enforced by asking for proof of vaccination, other types of businesses will now have to work out how they enforce the new rules for customers.
“There’s no doubt retailers have already gone through significant management changes from when QR codes became mandatory for entry, as well as masks and density limits. So the vaccine requirement for reopening is just another aspect of Covid safety plans,” he said.
Zahra also said some businesses may need to hire security and other Covid compliance workers to help check vaccination status of customers, but that while “there’s a cost in operating like this, a majority of retailers will welcome being able to reopen”.
But already, opponents of vaccine mandates are using the roadmap announcement as a way of mobilising business owners.
This week a Facebook group set up for businesses opposed to mandates quickly reached more than 100,000 members after it was shared widely in groups associated with opposing both Covid restrictions and vaccinations. The group has also attracted support from dozens of business owners who say they would resist mandates for customers or staff both because it is discriminatory, and because it places an unfair burden on their staff.
Among them was Tracy Innes, the owner of the Boatshed, a takeaway restaurant in Batemans Bay on the NSW south coast, whowrote to the group that she would “not take any part in discriminating towards people”.
She also said she would not put her staff “under the constant stress of policing” a mandate.
Innes is fully vaccinated but said she was upset that the government was placing the onus on employers to enforce a rule that would be extremely divisive in the community.
“I’m not sure they understand how volatile the community already is, I’ve never seen a situation that polarises people like Covid. I know people who no longer talk to each other because one’s getting vaccinated and one’s not. People who have been friends for 20 years,” she said.
Innes said her staff had regularly been abused by patrons while enforcing the Covid check-in rules, and feared a vaccine mandate would dramatically exacerbate that.
“They’ve said today that we will have to enforce this but there’s nothing to say that I can’t be sued for discrimination,” she said.
Michael Tooma, managing partner of law firm Clyde and Co, believes that for hospitality and retail businesses that will be opening up in NSW at 70% vaccination, employers will be within their rights to stop employing unvaccinated workers.
He said this is because vaccination against Covid could be seen as a safety requirement for interacting with others.
“Think of it like a licence. To be a truck driver you need a special type of licence to work. This is in effect a precondition to perform your work safely, it’s an inherent requirement of the job.”
In the event an employee can’t be vaccinated for medical reasons or religious beliefs, as opposed to a desire to not be vaccinated, Tooma said an employer will have to navigate discrimination law and see if there is an alternative way to keep them employed in a hospitality or retail setting, perhaps by frequent rapid antigen testing.
However Tooma said employers may still be allowed to terminate these medically or religiously unvaccinated employees if there is no practicable and safe alternative to being vaccinated in their line of work.
For business owners who don’t want to require their staff or customers to be vaccinated when they reopen, Tooma said the law is much clearer.
“The public health order allowing the businesses to open is a legal obligation. Failing to comply with the health order attracts significant penalties.”
“A business that runs the gauntlet and breaches public health orders, say if it’s a retail shop that allows an unvaccinated customer inside, is no different to the businesses we’ve seen that were fined for not complying with indoor mask rules and restrictions for non-essential retailers to shut during lockdown.
“People lose track of the fact that this type of requirement is not new,” Tooma said.