COVID-19 | NSW RoadMap to Reopening – Work requirements in phase 2 (80% vaccination rate)

1 November 2021
Brett Feltham, Partner, Sydney George Haros, Partner, Melbourne Siobhan Mulcahy, Partner, Melbourne Deivina Peethamparam, Partner, Melbourne Steven Troeth, Partner, Melbourne

This article has been updated to take into account amendments made to the Public Health (COVID-19 General) Order 2021 (NSW) on 19, 20, 21, and 26 October 2021, and 1 November 2021.

The Public Health (COVID-19 General) Order 2021 (NSW) (Order) is part of the roadmap for easing restrictions when 80% 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 15 October 2021 to take into account the move to more fully open New South Wales, with those further changes being implemented from today (a week earlier than expected).

Businesses in Greater Sydney that have re-opened 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’ premises.

All businesses need to fully understand these new rules and ensure compliance with the Order. General travel restrictions eased on 1 November 2021 and there is an intended general opening up of New South Wales on 1 December 2021 to vaccinated and unvaccinated persons.

From 1 December 2021, non-critical retail will reopen to all (with density limits applying), masks will be required only for public transport, planes and airports, and indoor front-of-house hospitality staff, and proof of vaccination will no longer be required under the Order. Employers will also only be required to allow staff to work from home if they choose to do so.

Who is a fully vaccinated person?

A fully vaccinated person means a person who:

  • has had two doses of an approved COVID-19 vaccine;
  • has a medical contraindication certificate issued to the person – this is a certificate in a form approved by the NSW Chief Health Officer and which certifies that the person cannot have a vaccination because of a specific medical contraindication;
  • has a medical contraindication certificate recorded on the Australian Immunisation Register that prevents the person from receiving any approved COVID-19 vaccine available in New South Wales; or
  • has a medical clearance notice/certificate (which will normally operate for up to six months) after having contracted and recovered from COVID-19.

An approved COVID-19 vaccine means both a vaccine approved by the Therapeutic Goods Administration (TGA) for use in Australia and also other vaccines recognised by the TGA as an appropriate vaccine against COVID-19 for incoming travellers to Australia.

An unvaccinated adult means a person who is more than 16 years of age and is not a fully vaccinated person.

Vaccination evidence

Evidence that a person is vaccinated will generally take the form of an online immunisation history statement, a COVID-19 digital certificate from the Australian Immunisation Register, or information displayed on the Service NSW mobile phone application.

Where a person is vaccinated against COVID-19 while overseas, evidence including an email or other document in printed or electronic form from the Department of Home Affairs that confirms the person has an Australia Travel Declaration and is fully vaccinated must be produced.

A person must not provide, display or produce to another person information or evidence, including vaccination evidence purporting to show the person is fully vaccinated, unless the information or evidence is true and accurate.

Freedoms for fully vaccinated persons

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:

  • retail premises, but not ‘critical retail premises’;
  • higher risk premises (entertainment facilities, recreation facilities (major), hospitality venues (pubs, clubs and bars), places of public worship, and premises at which a significant event is being held);
  • business premises that are hairdressers, spas, nail salons, beauty salons, waxing salons, tanning salons, tattoo parlours or massage parlours;
  • entertainment facilities (theatres, cinemas, music/concert halls);
  • recreation facilities (indoors);
  • public swimming pools;
  • information and education facilities;
  • business premises that are auction houses, betting agencies, or gaming lounges; and
  • markets that do not predominantly sell food.

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 considered to be reasonable steps?

What will be reasonable will depend upon the premises and any particular circumstances, but at a minimum it will include:

  • displaying the vaccination rules from NSW Health in a prominent position and usually at the place where persons will access the premises; and
  • requesting persons entering the premises to show their vaccination evidence (or in the case of children, evidence of their name and address).

Click and collect and takeaway

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

Critical retail premises can still be accessed by unvaccinated persons.

Critical retail premises include:

  • supermarkets and grocery shops, including neighbourhood supermarkets and neighbourhood shops;
  • shops that predominantly sell food or drinks (such as butchers, bakeries, fruit shops and delicatessens, but not restaurants or cafes);
  • chemists and pharmacies;
  • shops that predominantly sell office supplies, pet supplies, alcohol, and maternity or baby supplies;
  • post offices;
  • garden centres, plant nurseries, and landscaping material supplies; and
  • hardware and building supplies.

Occupiers of these premises do not have to check the vaccine evidence of a person entering these premises.

What about for premises outside of Greater Sydney (regional and rural NSW)?

The same rules now apply for areas outside of Greater Sydney. The temporary exclusion to allow partially vaccinated people who live and work outside of Greater Sydney to continue to work at their workplace ceased to apply on 1 November 2021.

COVID-19 Safe Check-in

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:

  • by using their phone to register via the Service NSW App; or
  • by providing the details to the occupier of the premises if it is not possible for them to register their details using the App or it would not be safe to do so – in this case the occupier must keep those records for at least four weeks and on request provide them in electronic form to the NSW Chief Health Officer.

The occupier of the premises must take reasonable steps to ensure a person complies with this requirement when entering the premises. The occupier of the premises may refuse entry to a person who fails to comply with this direction.

The NSW Government has now released an update to the Service NSW App which combines the ability to check-in via QR codes, together with providing a person’s vaccination status.

The contact details provided are to be used or disclosed only for the purposes of contact tracing during the COVID-19 pandemic.

Social distancing for people on premises

An occupier of premises in a general area must not allow more than:

  • one person per four square metres of space for parts of the premises that are indoor areas; and
  • one person per two square metres of space for parts of the premises that are outdoor areas.

Those restrictions do not apply in specific settings (where other rules apply) including:

  • an entertainment facility or a recreation facility (major); or
  • a place of residence, holiday home or a short-term rental.

Fitted face coverings (masks)

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:

  • in an indoor area of premises (other than a place of residence);
  • working at a hospitality venue and dealing directly with members of the public;
  • at a public transport waiting area or in a vehicle/vessel being used to provide a public transport service;
  • in an indoor area on common property for residential premises; or
  • on a domestic commercial aircraft.

As an important change a person does not need to wear a fitted face covering in an office building if the person is a fully vaccinated person, but not a part of the building that is a retail premises, a hospitality venue, or a recreation facility (indoor). Unvaccinated persons will still need to wear a mask in that setting.

Also, 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 person is eating or drinking;
  • the person is engaging in work and:
    • wearing the covering is a risk to the person’s, or another person’s, health and safety;
    • enunciation or visibility of the person’s mouth is essential; or
    • the work is in an indoor area and no other person is in the area;
  • the person is required to remove the covering for the proper provision of goods or a service;
  • the person is required to remove the covering because of an emergency;
  • the person is in a vehicle and no other person is in the vehicle other than a member of the person’s household, or the person’s nominated visitor; or
  • the person is engaging in physical exercise.

COVID-19 Safety Plan

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.

Working from home

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.

The temporary exclusion of these rules from applying to partially vaccinated employees who live outside of Greater Sydney ceased to apply on 1 November 2021.

What about the existing NSW public health orders?

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, in-home and community aged care, healthcare workers, early education and disability workers, and airport and quarantine workers.

For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.

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Authored by:

Brett Feltham, Partner
Sera Park, Associate
Nakita Rose, Lawyer

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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