Wed Sep 22

Soon you'll need to be vaccinated to enjoy shops, cafes and events — but what about the staff there?

Written by: Holly Seale, Associate professor, UNSW

The New South Wales and Victorian governments have released detailed roadmaps outlining how they’ll ease restrictions across Sydney and Melbourne.

A feature of both roadmaps will be the requirement to be fully vaccinated to do certain things like gather with larger groups of friends or enter venues including hairdressers, hospitality, gyms and entertainment.

This raises several considerations, including whether staff have to be vaccinated, and how staff will check people’s COVID vaccination status, enforce the rules, and deal with abuse hurled at them by non-compliant customers.

How does it work overseas?

In three major US cities — San Francisco, New Orleans, and New York City — you must be vaccinated to visit indoor public spaces like restaurants, cinemas and gyms.

In New York City, non-compliant businesses can get significant fines if they let in unvaccinated people, up to US$5,000 ^[1] (A$6,900).

In France, people must be fully vaccinated (or have a negative COVID test, or be able to prove they’ve recovered from infection) to attend restaurants, bars, museums, cinemas and large public gatherings. A similar pass has been introduced in Italy and Ireland ^[2].

In comparison, the requirement for venues to check COVID vaccine status (or a negative test) in the UK is still currently left to the discretion of the individual business ^[3].

While details are yet to be provided about the implementation of this requirement in Australia, penalties may be included for businesses that refuse to comply. NSW Customer Service Minister Victor Dominello recently indicated NSW pub owners who refuse to check the vaccination status of customers could face heavy fines ^[4].

Enforcing COVID rules comes with risk of abuse

It’s lawful for a business to refuse entry ^[5] to people who don’t have a COVID certificate, in the same way they can refuse entry to an intoxicated person — to protect staff and the rest of the patrons.

Some people may feel aggrieved by the prospect of being excluded from businesses because they’re not vaccinated and assert this is “discriminatory”. However, they’re using the term in a colloquial rather than legal sense — vaccination status isn’t a protected attribute covered by discrimination law.

Legal considerations aside, the practical issue of enforcement falls to businesses.

Recently in New York City ^[7], a restaurant hostess was punched repeatedly after asking a group of patrons to show proof of vaccination.

In the UK ^[8], some businesses have faced horrible abuse via social media for requiring evidence of COVID vaccination status from patrons, including death threats.

A survey of US service workers ^[9] conducted by One Fair Wage reported 80% had seen or experienced hostility including racism and sexual harassment from customers while enforcing public health rules during the pandemic.

Staff left on their own to figure out enforcement

In these situations, businesses have had to figure out how to enforce the requirements and how to respond to the angry customers who push back.

If they enforce the rules, they risk harassment and lost tips. But if they overlook unsafe customer behaviour, they risk further COVID transmission.

If these experiences are replicated in Australia, it will give rise to serious work health and safety issues for staff enforcing COVID mandates.

Employers will need to take reasonably practicable steps to minimise the risk to staff from such abuse. This could include hiring security guards, or implementing duress protocols or training in de-escalation techniques. What’s reasonably practicable will vary with the nature and size of the business. Employers should consult with staff on the implementation of such measures.

Some employees or unions might also argue enforcement of COVID mandates falls outside the scope of their role, and should be done by properly trained security professionals.

Employers may need to expand the set of duties on job descriptions to include COVID mandate enforcement.

Such a contractual variation can’t be imposed by the employer unilaterally. Industrial instruments under the Fair Work Act such as enterprise agreements, might also restrict the ability of an employer to allocate enforcement duties to employees.

Can staff be compelled to be vaccinated?

As part of New York City’s vaccine mandate, staff members must also provide proof of vaccination.

In Australia, COVID vaccination is mandatory in some settings including for health and aged-care workers, and construction workers in Victoria ^[11]. Beyond mandated industries, it will be at the discretion of the workplace as to whether they mandate the vaccine for their staff.

Outside of mandates, there are very limited settings in which an employer can require proof of vaccination and enforce that requirement. Most commonly this would be where an employer can demonstrate it’s a reasonably necessary step as part of COVID risk mitigation plans in the workplace.

If state and territory public health orders ^[12] are passed requiring your employer to collect your vaccination status information and reasons for non-vaccination, you may be required to provide your employer with your reasons or medical evidence exempting you from vaccination.

Supporting organisations

Before an organisation starts to check a person’s COVID status, it’s critical the government is clear and transparent about what they’re trying to achieve and how asking for the status will help achieve this outcome.

A requirement for an employee to show proof of vaccination won’t ultimately be enforceable without a proper justification. It must be lawful and reasonable.

To support businesses and their staff members, it’s critical to:

ensure staff have a clear understanding of the requirements and have the tools to support their introduction, such as signage, FAQs, and a template for implementation
develop a written implementation plan in collaboration with staff members, including how vaccination status will be checked. There must also be clear guidance about how to consider valid exemptions to the COVID vaccine requirement for people who are unable to have the vaccine for medical reasons
train designated staff to be responsible for checking proof of vaccination
have visible signage outlining the requirements to customers, available in multiple languages
give guidance around identifying fake vaccines cards
have a system in place for controlling crowding at your front door, such as a clearly delineated line, if patrons get backed up while waiting for proof of vaccination check.

The author would like to thank Michael Byrnes, partner at Swaab Attorneys, for his contributions to this article.