NSW is considering a radical 'incentive system' – but what does this mean for employers?
The NSW Premier said the state is considering a radical plan to allow venues like bars and restaurants to refuse entry to people who have not been vaccinated against COVID-19.
Gladys Berejiklian said she would like to see an ‘incentives system’ in place to encourage residents to get the jab once mass rollouts begin later this year.
“Already airlines have indicated that if you're not vaccinated, you can't travel overseas," she told Nine Radio.
"We will also consider whether we allow venues to [do that] — and venues do that already, people make up their own rules if they run a business or have a workplace about what they feel is COVID-safe.
"Whilst it's the Federal Government's responsibility in terms of the vaccine and the rollout, all workplaces and state governments will have a say in encouraging people to take it."
But her suggestion, which could see people banned from entering “high-risk settings” without proof of vaccination, will spark a number of legal concerns for businesses across the state.
Prime Minister Scott Morrison has previously said the government would not force people to be vaccinated.
But by allowing venues to make up their own rules as to who they let in, some will argue it is a round-about way of making vaccinations mandatory for anyone who wants the freedom to eat out and socialise.
HRD spoke to Trent Hancock, principal at Jewell Hancock Employment Lawyers, about the legal ramifications of Berejiklian’s suggested proposal.
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The first consideration is whether an incentive scheme like Berejiklian has suggested would be implemented on a compulsory or voluntary basis, he said.
“If it's going to be a mandatory scheme, it's likely to cause a significant regulatory burden on employers to check the vaccination records of patrons if we're talking about pubs and clubs and those sorts of venues,” he said.
“Then, presumably there would need to be some form of enforcement and penalty regime for venues that don't comply.”
Hancock also highlighted potential issues around breaching anti-discrimination law.
Under Australian legislation, people are protected from being discriminated against due to their age, race, disability, gender identity, sexual orientation and intersex status.
There is no specific protection regarding a person’s decision to be vaccinated but the Disability Discrimination Act 1992 does include the presence in the body of organisms capable of causing disease within its definition of a disability.
“It could be an argument that venues are discriminating against people on the basis of a disability or potential disability in the predisposition or the actual contraction of COVID-19,” Hancock said.
There is an exemption built into the legislation around infectious diseases that states it is lawful to discriminate against a person if their disability is an infectious disease and it is in the interest of public health – but as Hancock pointed out, that would only apply to a person who has COVID-19.
It's clear that without legislation at the federal level, the situation for employers and businesses is not going to be simple.
Businesses will have to weigh up two competing factors – protecting their employees from the risk of contracting COVID-19 and protecting the rights of consumers.
Read more: COVID-19: Should vaccine be mandatory in these sectors?
As Berejiklian and other state leaders have said, a vaccine is only going to be effective if a high proportion of the population agree to the jab.
And as it stands, a vaccine is the only route to reopening state borders permanently and restarting international travel – something tourism operators in Australia are desperately hoping for.
Whether compulsory or simply encouraged, the issue of vaccinations is a controversial one that comes with legal and ethical considerations.
HRDs and employment law specialists have a hard task on their hands when it comes to creating policy around vaccinations.
While an employer can legally implement a directive that all staff must follow, it must be reasonable and lawful – and that’s where an employer will fall down if they fail to take the correct steps.
An employer would need to show it considered alternatives like using PPE, allowing the employee to work from home or redeploying that person to a different role.
Employers will also have to make sure any policy includes considerations of possible exemptions on health or religious grounds.
In sectors like agedcare, healthcare or childcare the arguments for mandatory vaccinations are clearer and we have seen similar issues dealt with by the Fair Work Commissiom around the flu jab.
But hospitality employers will face a harder challenge without legislation from the federal government.
Hancock encouraged employers and HR professionals to keep an eye on federal and state-level guidelines to provide clarity on these issues, as well as rulings by the Fair Work Commission later down the line.
