In this update, we address some of the key questions we're being asked and provide links to current guidance from the New South Wales Government and other relevant sources.

Information can quickly become out of date as restrictions change. We recommend getting in touch if you need up-to-date advice or targeted assistance.

 1. Do our employees have to be tested or vaccinated under the recent public health orders?

At the date of publication (27 August 2021) the applicable New South Wales' public health orders (PHO) contain slightly different mandatory vaccination rules for workers who reside and/or work in local government areas (LGA) of concern and in particular roles or industries:

Construction – construction workers who reside in a LGA of concern must not enter a construction site in Greater Sydney unless they meet the vaccination requirements in the PHO. An occupier of a construction site must not allow a person to enter unless they have complied with the PHO vaccination requirement.

Early education and care and disability support workers (relevant care workers) – from 30 August 2021, relevant care workers (with some limited exemptions) whose place of residence or work is in a LGA of concern must have had at least 1 dose of a COVID-19 vaccine or have been issued with a medical contraindication certificate.

Authorised workers residing in a LGA of concern – from 6 September 2021, authorised workers who are required to leave their LGA for work must have had at least 1 dose of a COVID-19 vaccine, or have been issued with a medical contraindication certificate.

Residential aged care facilities – from 17 September 2021, workers are not to enter the premises of a residential aged care facility unless they have met the vaccination requirements in the PHO or are issued with a medical contraindication certificate, and from 31 October 2021, this is extended to health practitioners and students who attend such facilities. Operators of these facilities must take all reasonable steps to ensure compliance.

Health care workers – from 30 September 2021, health care workers (as defined in the PHO) must have had at least 1 dose of a COVID-19 vaccine, and from 30 November 2021 this is increased to having had at least 2 doses of a COVID-19 vaccine, unless they are issued with a medical contraindication certificate. Persons responsible for the employment of health care workers must take all reasonable steps to ensure that the health care worker complies with these requirements.

Interestingly, there is no positive obligation under the PHO on employers or occupiers of a workplace to restrict entry to relevant care workers or authorised workers from LGAs of concern if compliance is not proven, unlike for the other workers referred to above. However, employers' work, health and safety (WHS) obligations will likely mean they need to take steps to check that the workers are compliant and restrict entry if they are not.

Related to this, the PHO states that workers must carry relevant evidence of their vaccination and produce it if requested by their employer, an occupier of a site or the police.

There are also other specific programs in place for high risk occupations such as quarantine workers and those providing transport to airport workers.

In addition to the above roles or industries, the NSW Government has announced that vaccinations for all school staff across all sectors will be mandatory from 8 November 2021, however, there is no PHO in relation to this yet.

2. If we don’t have employees caught by the public health orders, should we be mandating vaccinations?

For employees unaffected by the PHO, the starting point is whether mandatory vaccination is a lawful and reasonable direction – and this will depend on the particular circumstances of each business (including the nature of the work employees perform and who they will come into contact with) and must be assessed on a case-by-case basis. The position will almost certainly also change over time, as the risk of COVID also changes.

Recently, the Fair Work Ombudsman has ranked in four tiers the likelihood that a direction will be lawful and reasonable.

A key consideration will be the employer's WHS obligations, which include a duty to do all that is reasonably practicable to eliminate, or if that is not reasonably practicable, minimise, the risk of exposure to COVID-19 in the workplace. Whether mandatory vaccination is a reasonably practicable step is likely to change over time, as the risk of COVID also changes.

Safework Australia's current position is that mandatory vaccination is unlikely to be a reasonably practicable step that must be taken, but this advice has not been updated for recent developments regarding the Delta strain and should be viewed in that context. Safework NSW's position (last updated on 30 July 2021) is that, when a vaccine is generally available, vaccination is likely to be recommended for all those performing tasks in a situation where there is a high risk of exposure to the virus that causes COVID-19 (unless there is a medical contraindication).

Employers operating in New South Wales considering these issues must also bear in mind:

• limits on available or preferred vaccines – meaning those who wish to be vaccinated may have to wait;
• the PHO requirement that employees whose place of residence or work is in a stay at home area or LGA of concern must work from home where reasonably practicable; and
• the availability of other control measures (eg, hygiene measures, physical distancing etc).

These considerations mean that, for many employers, it is premature to consider mandatory vaccination. However, that will likely change, and in preparation, most employers will need to engage in careful planning, take appropriate advice (both legal and medical - including from epidemiologists), undertake WHS risk assessments, consult with their employees and prepare appropriate communications and contingency plans.

As a first step, some employers are asking employees to participate in a voluntary survey about their vaccination status and/or their views about mandatory vaccination and/or testing. These surveys have been done on both an open basis (where the employee discloses their identity) and anonymous basis. Employers can use the results in their consideration of the most appropriate way forward.

Related to this, some employers are offering incentives to employees to get vaccinated. The Department of Health recently granted a permission enabling offers of incentives for vaccinations provided the offer:

• contains a statement to the effect that the vaccination must be undertaken on the advice of a health practitioner;
• is available to all eligible people who have been vaccinated (ie, those who were vaccinated before or after the offer being made);
• does not promote a specific vaccine;
• does not contain an offer of alcohol that encourages excessive or rapid consumption of alcohol or has a strong appeal to minors; and
• does not contain an offer of tobacco or medicines (other than listed medicines).

Further information about the permission can be found on the website for the Therapeutic Goods Administration.

3. What happens if we mandate vaccinations and an employee suffers an adverse reaction?

On 28 August 2021, the Federal Government announced a ‘COVID-19 Vaccine Claim Scheme’, to compensate people (including, but not limited to, workers) who have suffered a moderate to significant impact following an adverse reaction to an approved COVID-19 vaccine.

The government-funded scheme will cover loss above $5,000 due to a proven adverse reaction to a COVID-19 vaccination. Claims will be assessed by independent experts and paid in accordance with their recommendations.

The Scheme is intended to give people an administrative avenue to compensation for loss or injury suffered since February 2021.

Registrations for individuals intending to claim compensation under the Scheme will be open from 6 September 2021.

4. Can we insist on a negative COVID-19 test or RAT as an alternative to mandatory vaccination?

As a first step, you should consider whether the PHO deals with the issue (noting, the use of RAT as an alternative to vaccination for some authorised workers was removed in an updated PHO 28 August 2021). If not, the considerations are similar to those for question 2. However, as testing is less intrusive than vaccination, it will probably be easier to justify as a lawful and reasonable direction.

The rules relating to RAT are detailed and complex. Further detail can be found in our article about Rapid Antigen testing by our colleagues specialising in health and life sciences and at NSW Governments' Rapid antigen testing page.

5. Can we ask if employees have been vaccinated or tested?

An employer must have a proper basis to ask a question of this nature. Under the PHO, employees who need to be vaccinated, or undergo COVID-19 testing, must carry evidence and produce that evidence to their employer or the occupier of their place of work if requested.

For other employees, the employer will be able to ask where the direction to get vaccinated or tested is reasonable and lawful (covered above).

In addition, employers will need to consider their obligations under privacy laws, which include obligations concerning the collection, handing, use and disclosure of vaccination and testing information. Information about COVID-19 vaccinations and privacy can be found on the website for the Office of the Australian Information Commissioner.

6. What can we do if our employees need to be vaccinated – but they're not?

In the first instance, employers should understand their employees' reasons for not being vaccinated and request relevant evidence if necessary – e.g., medical certificates.

Having done this, employers can consider whether there are alternatives, such as testing regimes, which could be implemented instead of vaccinations.

Finally, employers could consider other alternatives, such as varying the employee's duties or workplace location or requiring them to take paid or unpaid leave. Potentially, a dismissal could occur following a reasonable process if the employee is unable to fulfil the inherent requirements of their role – which could include being vaccinated if it is mandated by a PHO.

Of course, these are significant decisions and must be approached carefully and on a fully informed basis, particularly as employees may be able to make legal claims, including unfair dismissal or in the case of employees subject to medical exemptions (and possibly others), discrimination.

7. What consultation should we undertake before implementing a vaccination / testing strategy

Employers considering mandatory vaccinations or testing will need to consult with employees and their health and safety representatives and relevant unions or other representatives (where applicable) about the proposal. Consultation obligations arise under the WHS laws and potentially under applicable modern awards or enterprise agreements.

8. Do we have to issue our employees with a permit to exit or enter LGAs of concern or regional areas?

Stay at home restrictions apply across New South Wales meaning that employees must work from home if it is reasonably practicable for them to do so. For workers who cannot work from home, a permit system has been imposed for some areas.

Permits are issued by Service NSW – not employers. Employees must apply for and carry permits when travelling to work in the following circumstances:

• employees who reside in Greater Sydney and are required to travel more than 50km outside of Greater Sydney for work; and
• from 28 August 2021, authorised workers who reside in a LGA of concern and are required to leave their LGA for work.

There is a reciprocal arrangement so that a person must not enter an LGA of concern without a permit issued by Service NSW.

Service NSW has released register to travel information, including an application form, for workers leaving or entering an area of concern.

The permit requirements are in addition to the requirement for workers to be tested every 7 days if they enter premises more than 50km from Greater Sydney.

Employers will need to communicate these requirements to employees and can request evidence from employees to ensure compliance.