The Public Health (COVID-19 General) Order 2021 (NSW) (Order) is part of the roadmap for easing restrictions when 70% of the population of New South Wales who are over 16 years of age are fully vaccinated against COVID-19. The Order was amended on 8 October 2021 to take into account the most recently announced changes to apply from 11 October 2021.
Businesses in Greater Sydney that re-opened yesterday (11 October 2021) or intend on opening shortly are required to take reasonable steps to ensure that people who are not fully vaccinated against COVID-19 do not enter their premises. For those businesses, ‘click and collect’ or take away services can still be provided to unvaccinated customers. Unvaccinated customers will continue to be able to access ‘critical retail’.
All businesses need to fully understand these new rules and ensure compliance with the Order. There will be a further easing of restrictions on the Monday following when 80% of the population of New South Wales who are over 16 years of age are fully vaccinated against COVID-19 (with that expected to occur on 25 October 2021).
A fully vaccinated person means a person who:
An unvaccinated adult means a person who is more than 16 years of age and is not a fully vaccinated person.
The occupier of the following premises in Greater Sydney (which includes the Central Coast, the Blue Mountains, Shellharbour and Wollongong) must take reasonable steps to ensure that an unvaccinated adult is not on the following premises:
Occupiers of higher risk premises must ensure that a person who is under 16 years of age and who is not a fully vaccinated person is not on the premises, unless the person is on the premises to carry out work or is accompanied by a person who is a member of their household or fully vaccinated.
After being unclear for a number of weeks and after much speculation, the Order now clearly applies to not only customers at those premises, but also staff working at those premises. Specifically, the Order requires that any unvaccinated persons, including staff and volunteers, must not be on the premises listed above. In this way the NSW Government has now sought to mandate vaccinations for a large number of employees working at these premises, without the publicity or lead in time which applied to mandating vaccinations in other industries such as residential aged care, health or education.
What will be reasonable will depend upon the premises and any particular circumstances, but at a minimum it will include:
The above restrictions do not apply to a person who is on the premises to use a click and collect service, to assist vulnerable members of the public, or to purchase food or beverages to be consumed off the premises. This means that unvaccinated persons will continue to be able to undertake those actions.
Critical retail premises can still be accessed by unvaccinated persons.
Critical retail premises include:
Occupiers of these premises do not have to check the vaccine evidence of a person entering these premises.
The above restrictions also do not apply to a person who is on the premises if they live and work outside of Greater Sydney, the person has had only one dose of a COVID-19 vaccine, and the person is on the premises for the purposes of work. This temporary exemption has been put in place to recognise that it has been more difficult for regional workers and those in remote areas to access vaccinations, but it ceases to apply on 1 November 2021.
Where a person (staff or customer) enters business premises (including retail premises and shopping centres, hospitality venues, offices, industrial and manufacturing premises, and construction sites) the person’s contact details must be registered electronically:
The occupier of the premises must take reasonable steps to ensure a person complies with this requirement when entering the premises. The occupier of premises may refuse entry to a person who fails to comply with this direction.
The NSW Government is currently trialling an update to the Service NSW App which will combine the ability to check-in via QR codes, together with providing a person’s vaccination status. Once this update is introduced more broadly, the burden on business to check this information may ease slightly.
The contact details provided are to be used or disclosed only for the purposes of contact tracing during the COVID-19 pandemic.
An occupier of premises in a general area must not allow more than:
Those restrictions do not apply in specific settings (where other rules apply) including:
A person in the general area who is over 12 years of age must wear a fitted face covering (covering their nose and mouth) in various circumstances, including while the person is:
A person is not required to wear a fitted face covering if the person has a physical or mental health illness or condition, or disability, that makes wearing a fitted face covering unsuitable, and carries evidence in the form of a medical certificate or other written evidence (signed by a registered health practitioner or a registered NDIS provider) or a signed statutory declaration by the person.
A person may remove a fitted face covering temporarily and must resume wearing it afterwards in various circumstances including where:
The occupiers of some premises must also develop a COVID-19 Safety Plan, which addresses matters raised in the COVID-19 safety checklist specified for that industry. For example, food and drink premises, pubs, bars and registered clubs must all address matters raised in the Hospitality checklist.
For those occupiers, they must comply with the plan, keep a copy of the plan at the premises, and make the plan available for inspection, if requested to do so, by an authorised officer or a police officer.
An employer must allow an employee who is a fully vaccinated person to work at the employee’s place of residence if it is reasonably practicable to do so.
An employer must also allow an employee who resides outside of Greater Sydney and has had only one dose of a COVID-19 vaccine to work at the employee’s place of residence if it is reasonably practicable to do so.
An employer must require an employee who is not a fully vaccinated person to work at the employee’s place of residence unless it is not reasonably practicable to do so. This restriction does not apply to a person who lives outside of Greater Sydney and has had only one dose of a COVID-19 vaccine. This temporary exemption ceases to apply on 1 November 2021.
The Order applies in addition to the existing NSW public health orders imposing vaccination and other restrictions on education and care workers, workers in aged care residential care facilities, healthcare workers, early education and disability workers, airport and quarantine workers.
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Brett Feltham, Partner
Sera Park, Associate
Nakita Rose, Lawyer