Governments must lead with clear guidance on reopening

AT a New York Italian restaurant last month, three men allegedly assaulted a member of staff because she asked to see proof of COVID-19 vaccination before seating them indoors.

The woman was repeatedly punched and had her necklace broken, according to news reports.

Carmine’s restaurant said in a statement it was a “shocking and tragic situation when one of our valued employees is assaulted for doing their job – as required by city policies – and trying to make a living”.

The restaurant was seeking to comply with a newly introduced rule requiring businesses in the city to ask customers for proof of vaccination before admitting them to indoor venues.

New York was the first major US city to introduce such a rule when it came into effect in August. Under the rule, which weirdly only requires a single dose of the vaccine, non-compliant businesses face fines of US$1000–US$5000.

As Australia starts reopening after some of the longest lockdowns in the world, it’s inevitable similar incidents will happen here. We’ve already seen restaurant staff allegedly attacked for asking customers to check in.

The antivaccination zealots may be a minority, but they are certainly a vocal one. It’s hard to imagine some of them taking refusal of admission calmly.

The least we can expect is that governments would provide clear guidelines for businesses to help them navigate this unprecedented landscape.

I’ve spoken to a number of business operators in recent weeks who are tearing their hair out trying to understand their rights and responsibilities as we start to reopen.

These include employment issues: Can they require their staff to be vaccinated? Can they even ask their staff about vaccination status? What happens if a vaccinated member of staff does not want to work with unvaccinated colleagues?

Try to find answers to those questions online and you’ll bounce from the Fair Work Ombudsman to state and territory websites and back, perhaps via Safe Work Australia or the Australian Human Rights Commission. Each of them will send you on to all the others, and some will also tell you to check industrial awards covering your staff for any relevant provisions.

Alongside that, you’ll see countless posts from private law firms, some suggesting a vaccine mandate can’t be implemented unless required by government, others saying it can if it’s “reasonable under the circumstances”, whatever that means.

Ultimately, what all the sites have in common is that they say businesses must seek proper legal advice on any measures they seek to implement.

When it comes to implementing a vaccination requirement for customers of the business, things are not much clearer.

While various jurisdictions have announced vaccination requirements during the reopening period, there’s confusion about what happens once the government rules are relaxed.

New South Wales residents have been told it will be open slather for vaccinated and unvaccinated alike from 1 December.

It’s hard to fathom the rationale for that decision or for the timing of the announcement. Telling the vaccine-hesitant they would only have to wait a few extra weeks to have all the freedoms of the vaccinated seems like an excellent way to undermine a vaccination program.

What nobody seems to know is how this will play out for businesses that wish to continue the vaccination mandate after that date. Will they face legal risks for alleged discrimination?

I was talking to staff at a NSW not-for-profit community organisation last week who wanted to continue restricting access to their building into next year to protect their many elderly and disabled visitors. They had no idea whether that would be allowed after 1 December.

Confounding all this is that businesses may also be held liable if staff or patrons contract COVID-19 at their premises. Many public liability insurers have introduced exception clauses saying they will not cover businesses for this liability if the business has failed to take appropriate precautions (here, here, here and here).

Should we really be expecting every cash-strapped business already reeling from the impact of COVID-19, every struggling not-for-profit, to seek individual legal advice to guide them through this nightmare?

We need government leadership here, with clear advice on what businesses can and can’t do to maximise safety for their staff and patrons.

If you thought the recent “freedom” protests were unpleasant, you can be pretty confident emotions will become even more heightened in coming months.

Businesses will be criticised no matter what they do: the unvaccinated will protest their exclusion, people who are vaccinated will resent having to mingle in gyms and cinemas with those who aren’t.

And the people on the front line will be low-paid, often young, service staff trying to manage the aggression that will undoubtedly come their way.

Clear guidance for business would be one small thing we could do to help protect them.

Jane McCredie is a Sydney-based health and science writer.

The statements or opinions expressed in this article reflect the views of the authors and do not represent the official policy of the AMA, the MJA or InSight+ unless so stated.