Earlier this month, the NSW Government unveiled its Roadmap to Freedom, outlining the State's initial plan for relaxing COVID-19 restrictions for the fully vaccinated and the re-opening of businesses when double-dose targets are reached.
Under the Roadmap, hospitality venues, retail stores, hair and beauty salons, gyms, as well as sporting and recreational facilities will be permitted to re-open (subject to certain restrictions, for example, masks will remain mandatory for all indoor public venues) when the 70% double-dose target is reached. The government intends to open-up further freedoms, including in relation to international travel and major events, when the State reaches the 80% double-dose target.
More recent statements from leading NSW government officials have created some confusion as to what the relaxing of restrictions will look like for the vaccinated and unvaccinated, and how businesses should prepare for re-opening.
During a recent radio interview, the Deputy Premier John Barilaro suggested that once the 80% double-dose target is reached, the unvaccinated cohort would enjoy the same freedoms as the fully vaccinated and that if businesses did not want to enforce vaccination requirements for patrons and other visitors, that would be permissible.
However, Premier Gladys Berejiklian has subsequently contradicted this by telling media that the unvaccinated will not get the same freedoms as the fully vaccinated. She also stated that the Government had not finalised its plan for precisely what the rules would be once the State reached the 80% double-dose target, although she stated:
"At 70%, if you're not vaccinated, it will be a health order and the law that if you're not vaccinated, you can't attend venues on the roadmap. You can't go into a hospitality venue. You can't get to ticketed events unless you are vaccinated."
The Premier has also not ruled out restrictions on unvaccinated people once the 80% double-dose threshold is reached, making it clear that those unwilling to receive the vaccine will not be able to benefit from the freedoms earned by the "hard work" of others who have been vaccinated.
What does the Roadmap to Freedom mean for employers?
When businesses are allowed to re-open, the Premier has suggested that it could be left up to businesses to decide how they will treat unvaccinated patrons and other visitors, as opposed to being subject to a government mandate, although she has also suggested that the government might legislate what restrictions business may be required to comply with in relation to the unvaccinated, but said "we have not come to those conclusions yet".
Similarly, while the government has made it clear that it considers vaccinations are absolutely critical, for the most part the government has not provided employers with clear guidance around their ability to mandate vaccinations and what employers are able to do to enforce mandatory vaccinations.
Given the lack of clear guidance for businesses, we maintain that employers should take a 'first principles' approach in navigating their way forward under the Roadmap.
Employers are ultimately responsible for workplace safety and have a very clear obligation to ensure the health, safety and welfare of employees and others who visit their premises in relation to COVID-19. Employers who do not comply with this obligation may face very serious consequences. We note that this week, WorkSafe Victoria has announced that it will be investigating a large government contractor in relation to the COVID-19 death of one of its employees who may have contracted the virus at one of the employer's Victorian worksites.
It remains our view that unless the work and health and safety framework around COVID-19 changes, employers should be introducing mandatory vaccination policies and that any policy deal not only with employees but also customers and others who may visit an organisation's premises.
Finally, it is critical that any mandatory vaccination program is introduced and managed carefully, including how employers will treat special cases (including where an individual may have a genuine reason for not receiving the vaccine). To that end, we have prepared a comprehensive COVID-19 Vaccinations Policy Kit for employers, more information about which can be found here.