Public Health Orders: what it means for your business

Business NSW has received enquiries from members wanting clarification on information in the Public Health Order relating to vaccinated and unvaccinated employees. 

Last updated: 14 October 2021

Kyle Scott, Director of Australian Business Lawyers & Advisors takes a closer look and provides an explanation.

The Public Health Order that came into effect in NSW from 11 October requires certain businesses to take reasonable steps to prevent unvaccinated people from entering the premises. The Order does not require all businesses to do so.

Under the current Public Health Order, those requirements only apply to a discrete list of industries such as hospitality, non-critical retail, indoor recreation facilities, hairdressers and other beauty salons, education facilities, large entertainment venues, etc.

The relevant provision is clause 2.18 of the Order

For other businesses not captured by the clause, the rules around employees are set out in clause 2.23 of the Order. See the extract below: 

2.23 Working from home

(1) An employer must allow an employee who is a fully vaccinated person to work at the employee’s place of residence if it is reasonably practicable to do so.

(1A) An employer must allow an employee who resides outside Greater Sydney and has had only 1 dose of a COVID-19 vaccine to work at the employee’s place of residence if it is reasonably practicable to do so.

(2) An employer must require an employee who is not a fully vaccinated person to work at the employee’s place of residence unless it is not reasonably practicable to do so.

(3) An employee who is not a fully vaccinated person must not work at a place other than the employee’s place of residence unless it is not reasonably practicable to work at the place of residence.

(4) Subclause (1) does not apply to an employee to whom clause 3.19 applies.

Note – this clause has effect subject to requirements imposed by clause 2.18 concerning vaccinations. For example, an unvaccinated adult who cannot reasonably work from home, but whose place of work is an entertainment facility, is not permitted to attend that place of work.

(5) Subclauses (2) and (3) do not apply to an employee if:

(a) the person resides outside Greater Sydney, and

(b) the person has had only 1 dose of a COVID-19 vaccine.

(6) Subclauses (1A) and (5) and this subclause are repealed at the beginning of 1 November 2021.

Employee concerns

In situations where unvaccinated employees are attending the workplace (e.g. where it is not reasonably practicable for them to work from home), a couple of issues are likely to arise:

  • Firstly, some vaccinated employees might not be comfortable working alongside unvaccinated co-workers, or might refuse to work alongside them, and
  • Secondly, the business should consider whether there are additional control measures that can be put in place to reduce the risk in relation to the presence of unvaccinated workers at the workplace.

In relation to the first issue, generally speaking, employees do not have the right to refuse to work with colleagues who are unvaccinated.  Under the work health and safety legislation, a worker can only cease or refuse to carry out work if the worker has a reasonable concern that to carry out the work would expose the worker to a ‘serious risk’ to the worker’s health or safety from an ‘immediate or imminent exposure to a hazard’.

That is quite a high threshold, and would likely only apply in rare cases, for example:

  • where a vaccinated employee is still at a heightened risk due to medical conditions,
  • where there is reason to believe the unvaccinated worker has a heightened risk of carrying the virus (e.g. they live in a hotspot), or
  • where the other typical control measures such as physical distancing and masks cannot be adhered to due to the nature of the work being performed.

Safe Work Australia states that in most circumstances, a worker will not be able to rely on the WHS laws to cease work simply because another worker at the workplace isn’t vaccinated. However, this will depend on the circumstances.

Then again, for workers who have a medical condition and who are concerned about working alongside unvaccinated co-workers, the employer will likely have an obligation under anti-discrimination legislation to make reasonable accommodations to the person’s role.

It is important to note this information does not represent legal advice and you should seek specific legal advice for your circumstances.  We recommend Australian Business Lawyers & Advisors to help find solutions and minimise risks to your business.

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