As NSW is returning to work and businesses reopen following the latest Covid restrictions, we’re being asked a lot of common questions around employer obligations, vaccinations, general business operations, and just what you can and can’t do.
We’ve collected some of the FAQs and posted them here to help as we navigate the NSW Roadmap. and return to “normal” life.
Note: Information contained below is gathered from the NSW Health website and is current as of Wednesday 13 October 2021
How can I keep my business and employees COVID Safe?
All businesses in NSW have a responsibility under the Work Health and Safety Act 2011 (‘WHS Act’) to ensure a safe working environment, including managing the risks associated with COVID-19. Having a COVID-19 Safety plan in place will help businesses mitigate the risk of transmission of COVID-19 in the workplace and comply with their obligations under the WHS Act. Your COVID-19 Safety plan should be completed in consultation with your workers and shared with them. If you’ve completed a COVID-19 Safety plan you can register your business as COVID Safe.
Employers must take a risk management approach (in consultation with workers) to determine the control measures they implement to prevent workplace transmission of COVID-19. A variety of factors such as eligibility for the vaccine, personal health, medical history, type of work and alternative control measures should be considered, along with the risk of exposure.
Safe Work Australia have established a number of resources to help businesses and workers maintain a safe working environment to manage the risk of COVID-19 infection and transmission.
Are QR codes mandatory for staff & customers?
Office premises will be required to have a NSW Government QR code so that staff and customers can check in using the Service NSW app, or alternatively, the Service NSW business online form for people who do not have a smartphone or are unable to sign in using the Service NSW app. More information on mandatory electronic check-in can be found here.
Can I direct my employees to get vaccinated against COVID-19?
Yes, you can direct your employees to get vaccinated against COVID-19 where:
- A specific law (for example a state or territory Public Health Order- such as the NSW Public Health Order) requires an employee to be vaccinated.
- The requirement is permitted by an enterprise agreement, other registered agreement or employment contract.
- It would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.
It is recommended that employers obtain independent legal advice before making coronavirus vaccinations mandatory in their workplace. See a full summary here.
Safe Work Australia has published COVID-19 vaccination guidance for employers, small business and workers.
What defines a “reasonable” direction?
‘Reasonable’ directions will need to be assessed on a case-by-case basis and depend on a number of factors including:
- The nature of the workplace;
- The extent of community transmission of COVID-19 in the location where the direction is to be given;
- The role of the employee, including their duties and the risks associated with their work;
- The likelihood of exposure to COVID-19 in the workplace;
- Work, health and safety obligations;
- Vaccine availability; and
- Whether employees have a legitimate reason for not being vaccinated (for example, a medical exemption).
It is important to note that just because it may be lawful and reasonable to give a direction to one employee to get vaccinated against COVID-19, this won’t necessarily mean it will automatically be lawful and reasonable to give the same direction to all employees.
Assessing if a direction is “Reasonable”
When undertaking a case-by-case assessment of what is ‘reasonable’, it may be helpful as a general guide to divide work into 4 broad tiers:
- Tier 1 work: where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
- Tier 2 work: where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
- Tier 3 work: where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
- Tier 4 work: where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
A direction by an employer for employees performing Tiers 1 or 2 work to be vaccinated against COVID-19 is more likely to be considered reasonable given the increased risk of these employees being infected with the virus and transmitting the virus to vulnerable persons.
Whereas an employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of infection and transmission of the virus.
For Tier 3 employees, the reasonableness of a direction will vary depending on the level of community transmission occurring in the area. Where the direction is given.
Can I ask my employees & customers for proof of vaccination?
Business are responsible for taking reasonable steps to prevent unvaccinated people from entering the premises/workplace. Checking the vaccination status of employees and customers where practical upon entry would be considered a reasonable step to prevent unvaccinated people entering the premises.
However, it is important to note that from Wednesday 1 December 2021, the NSW Roadmap will allow NSW to reopen to everyone, both vaccinated and unvaccinated. Proof of vaccination will no longer be a requirement under the Public Health Order from this date, meaning employers should no longer ask staff or customers for proof of their vaccinations.
How do I check an employee’s vaccination status?
A COVID-19 digital certificate can be accessed through the Express Plus Medicare mobile app or Medicare online account through myGov. An immunisation history statement can also be accessed from My Health Record or a printed version of the digital certificate or immunisation history statement may be shown.
Be sure to check that the full name on the vaccination statement matches the name of the person showing it to you to avoid unvaccinated staff and customers gaining entry from someone else’s vaccination history. You can make sure of this by checking the name on their ID (such as a driver’s license) matches the name on the vaccination certificate.
Can an employee refuse to come to work because another employee isn’t vaccinated?
In most circumstances, it is unlikely that an employee will be able to refuse to attend their workplace because a co-worker isn’t vaccinated against COVID-19. This is because:
- Vaccination isn’t mandatory for all employees and many workplaces won’t be able to require their employees to be vaccinated, and
- The co-worker may have a legitimate reason not to be vaccinated (for example, a medical reason).
If an employee raises concerns about returning to the workplace, employers should talk to their employees and share information with them about any steps taken, or steps that can be introduced, to reduce the spread of the virus and ensure a safe workplace.
What should I do if an employee refuses to be vaccinated?
In these situations, an employer should ask the employee to explain their reasons for refusing the vaccination. An employee may have a legitimate reason for not being vaccinated, for example, the employee could have an existing medical condition that means vaccination is not recommended for them.
If the employee has a legitimate reason for not being vaccinated, the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements, such as asking the employee to perform different duties or to work from home.
Can I take disciplinary action if an employee refuses to get vaccinated?
Before taking any action, an employer should talk to the employee and discuss the employee’s reasons for not wanting to get vaccinated. Whether an employer can take disciplinary action will depend on the individual facts and circumstances of the matter. To work out if and how an employer can take disciplinary action, employers should consider the terms, obligations and rights under any applicable:
- Enterprise agreement or other registered agreement;
- Employment contract;
- Workplace policy; or
- State or territory public health order.
In circumstances such as these, we highly recommend seeking clarification from a legal services provider before taking action.
Do my obligations change once all my staff are fully vaccinated?
Even when all your employees have received both vaccinations against COVID-19, you must keep all control measures in place.
This is because there is currently insufficient evidence on the impact of COVID-19 vaccines on the transmission of the virus, meaning workers may still contract, carry and spread the virus even if they are fully vaccinated.
What do I do if an employee or customer tests positive for COVID-19?
Whether they are vaccinated or not, they must self-isolate for 14 days and follow the advice provided by NSW Health. You should follow the procedure outlined in your COVID-19 Safety Plan for instructions on how to notify other staff.
If you have three or more employees test positive for COVID-19 in a 7-day period, you must inform NSW Health.
Who can return to the office and when?
Currently, having passed the NSW double-dose benchmark of 70%, employers must, if reasonably practical:
- allow staff to continue to work from home; and
- require staff who are not fully vaccinated to work from home.
If the NSW Roadmap. continues to progress as predicted, from Wednesday 1 December, employers can allow staff to work from home at their discretion.
What are the capacity limits & physical distancing requirements in an office?
While workplaces have a duty to comply with WHS legislation, it is recognised that it may not be possible or feasible in every workplace to maintain physical distancing of 1.5 metres. Accordingly, physical distancing of 1.5 metres is not a legal requirement in an office environment.
Capacity limits have been lifted for office spaces.
Do employees have to wear face masks?
NSW double-dose benchmark of 70% (current level):
- Indoors: masks remain mandatory for all staff & customers in indoor public venues (including business premises), and public transport.
- Outdoors: masks no longer required, except for front-of-house hospitality staff.
NSW double-dose benchmark of 80% (changes come into effect the Monday after benchmark is reached):
- Indoors: Mask requirements lifted for office buildings (for those fully vaccinated), other indoor mask requirements remain in place.
- Outdoors: Front-of-house hospitality staff mask requirement remains in place.
Wednesday 1 December (if the NSW Roadmap. continues to progress as predicted):
- Indoors: All indoor mask requirements lifted, except for indoor front-of-house hospitality staff, and public transport & airports.
- Outdoors: All outdoor mask requirements lifted.
If are uncertain of any of your obligations or requirements as your business reopens following the latest lockdown, please don’t hesitate to get in touch.
Morrissey Law + Advisory communications are only intended to provide commentary and general information as at the date of publication. They are for reference purposes only, do not constitute legal advice and should not be relied upon as such. Formal legal advice should always be obtained about particular transactions, contracts or matters of interest before taking any action based on this communication. Authors and contributors may not be admitted in all State and Territories.