Australian businesses can require customers to prove they’ve had Covid jab, regulator says

Businesses will be able to require customers and visitors to prove they have been vaccinated against Covid-19 as a condition for entry, according to guidance by Australia’s work health and safety regulator. The guidance, published by Safe Work Australia on Friday, comes as the New South Wales premier, Gladys Berejiklian, doubled down on her suggestion that “incentives” to get a Covid vaccine could include the ability to go on a commercial flight or enter hospitality businesses.

According to Safe Work Australia, it is “unlikely” employers in most industries will be required by WHS law to make their staff get vaccinated, although public health orders are yet to be determined and could make it a requirement in high-risk workplaces including health, aged and disability care.

The regulator concluded that although employers have a duty to “eliminate or if not possible, minimise, so far as is reasonably practicable, the risk of exposure to Covid-19 in the workplace” that did not extend to requiring staff get vaccines. That is because the Australian Health Protection Principal Committee has not recommended a vaccine be made mandatory in any industry, vaccines are not yet available and many industries may be “low risk”.

Several eminent labour law experts, including barrister Ian Neil and academic Andrew Stewart, have argued that an employers’ ability to give staff “lawful and reasonable” directions means they can require staff to be vaccinated in some circumstances. On the question of whether customers and visitors can be required to get a vaccine, Safe Work Australia said it was “unlikely that WHS laws require you” to ask for proof of vaccination.

“However, you might still want to require this as a condition of entry to your premises,” it said. “Before you take action to impose this kind of requirement, you should seek advice as there may be privacy and discrimination issues that apply.” Safe Work Australia also advised employees would generally not be able to refuse to come to work because a colleague has not been vaccinated.

On Friday, the prime minister, Scott Morrison, told reporters in Sydney that although chief medical officers had advised “at this point … there would be no requirement” for at-risk frontline workers to be vaccinated, “should that be necessary” states and territories would be expect to write uniform, nationally consistent public health orders.

Berejiklian said that although “we don’t like to make things mandatory in NSW” she was “completely happy and comfortable for there to be incentives for people to take the vaccine”. Asked what sort of incentives could be offered, Berejiklian replied it would be “up to private organisations”.

“I presume that airlines might say that they would want people vaccinated when they go on international flights. There could be some hospitality venues that may be able to ease restrictions further if, you know, patrons have [been vaccinated].”

When Berejiklian suggested in January that vaccines could be required to enter pubs, clubs and government buildings, other state and territory leaders poured cold water on the idea.

The AHPPC will not recommend vaccines be required in high-risk workplaces until more evidence establishes that they are effective at preventing not just contraction but also transmission of Covid-19. The ACT chief minister, Andrew Barr has said if vaccines prevented the spread of coronavirus, the idea of requiring them could have “some merit in high-risk circumstances”, but otherwise the NSW premier’s call seemed “a little odd”.

Australia’s Covid-19 vaccination policy states the vaccine is “not mandatory and individuals may choose not to vaccinate”.

“There may however, be circumstances where the Australian government and other governments may introduce border entry or re-entry requirements that are conditional on proof of vaccination.”

The Qantas chief executive, Alan Joyce, has agreed that vaccination is likely to become a requirement for travel.

Source: The Guardian

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