29 September 2021
7 min read
#Workplace Relations & Safety, #COVID-19
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As Federal and State governments begin to announce the roadmaps for easing COVID-19 restrictions and freedoms for vaccinated Australians, businesses preparing to re-open are challenged with how to manage the risk of COVID-19 being transmitted in the workplace.
From 11 October 2021, being the Monday after NSW is expected to reach the 70 per cent full vaccination target, restrictions will be eased to allow those who are fully vaccinated, and those with medical exemptions, to access venues including hospitality venues, retail stores and gyms. Current stay at home orders will remain in place for those who are not fully vaccinated until 1 December 2021, when the stay at home orders are expected to be lifted.
Businesses that refuse to provide goods or services to unvaccinated customers could face a discrimination complaint if the customer cannot be vaccinated because of a ‘protected attribute’. Businesses must be able to show the vaccination requirement is ‘reasonable’ in the circumstances to successfully defend a discrimination complaint.
The Court may consider the existence and scope of any relevant law including, for example, a Public Health Order, when assessing reasonableness. Businesses should therefore have regard to the Public Health Orders in place at the time when assessing if a vaccination requirement is reasonable.
A full exemption to the discrimination laws is available if a vaccination requirement is implemented in direct compliance with a specific law such as a Public Health Order.
Anti-discrimination laws apply to businesses in the provision of goods and services, including, for example, hospitality venues, retail stores and gyms.
A blanket ‘no jab, no service’ requirement for customers may amount to ‘indirect discrimination’ if a customer cannot be vaccinated, and therefore cannot comply with the requirement because of a ‘protected attribute’.
This article focuses on the key Commonwealth anti-discrimination laws which may be enlivened by a blanket requirement that customers be vaccinated as a condition of service. We caution that businesses must also comply with State and Territory anti-discrimination laws and note that those jurisdictions may offer further protections than those arising at the Commonwealth level.
Indirect discrimination is a form of unlawful discrimination occurring when:
This means the requirement has a blanket application – the requirement itself does not intend to single out and discriminate against particular individuals. Instead, the requirement applies to everyone.
A ‘protected attribute’ is a characteristic that, by law, cannot be discriminated against. ‘Protected attributes’ at the Commonwealth level and most likely to apply in this context are:
Importantly, the Disability Discrimination Act 1992 (Cth) has a broad definition of ‘disability’, including total or partial loss of functions. Also, the disability does not need to be present and can include a past or future disability.
The provisions of the Age Discrimination Act 2004 (Cth) may be engaged on the basis of vaccine availability to particular age groups. For example, until recently, Australians aged younger than 16 had limited access to a COVID-19 vaccine.
If a business refuses to provide goods or services to an unvaccinated customer, and the customer cannot be vaccinated because of a ‘protected attribute’, the customer may have grounds for an ‘indirect discrimination’ complaint. It is important to note that the NSW Government roadmap includes freedoms for those with ‘medical exemptions’ from full vaccination.
Further, the Disability Discrimination Act 1992 (Cth) imposes a positive obligation to make ‘reasonable adjustments’, if doing so would mean that a person could comply with the relevant requirement, unless making the adjustment would cause unjustifiable hardship. Businesses will therefore need to consider an ‘adjustment’ in the form of flexibility for those with legitimate medical reasons for not being vaccinated.
Taking a personal ‘anti-vaccination’ stance is not, in and of itself, protected under discrimination laws.
A business will not be found to have engaged in ‘indirect discrimination’ if they can show the requirement is ‘reasonable’ in the circumstances.
The court will assess this on a case-by-case basis and will consider:
At this stage, and in most circumstances, a vaccination requirement is more likely than not to be considered ‘reasonable’ due to the outbreak of the highly contagious Delta-variant, and the effectiveness of vaccines in reducing the serious health risks arising from the virus. This is also in the context of the NSW Government Public Health Orders restricting unvaccinated people from accessing venues until 1 December 2021.
There are, however, exceptions to the NSW Government Public Health Orders which means that a blanket ‘no jab no service’ requirement may not be reasonable in all circumstances. For example:
We caution businesses from taking a blanket approach and giving consideration to flexibility where an individual has legitimate reasons for not being vaccinated, particularly those with medical reasons. Consider alternatives which also satisfy work health and safety obligations, such as the individual producing a recent negative COVID-19 test result.
As we edge closer to ‘freedom day’, currently scheduled for 11 October 2021, we anticipate the Federal and State governments will provide further guidance on whether businesses can refuse to provide goods or services to unvaccinated customers. Until and unless a vaccination requirement of this kind is reflected in a specific law, such as a Public Health Order or Direction, businesses are not fully immune from discrimination complaints.
Businesses should undertake a work health and safety risk assessment which specifically considers:
Businesses should continue to monitor for government announcements given the rapidly changing position as vaccination targets are reached.
Authors: Louise Rumble & Adrian Zagami
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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