COVID-19 conundrum – a legislative nightmare

COVID-19 conundrum – a legislative nightmare

17 October 2021 By Travis Schultz
Travis Schultz

As our country opens its borders once again, businesses will find themselves in a ridiculous situation because of the government’s failure to provide clear rules about when it is permissible to refuse entry to unvaccinated people, writes Travis Schultz.

It is quite unfair to expect business operators to run the gauntlet of a discrimination test case simply because our politicians want to sit on the fence for fear of upsetting their voter base.

Currently, businesses are left to navigate both state and federal discrimination legislation and to consider their own situation as to whether they are permitted to impose a blanket ban on entry to unvaccinated people. Whilst it is illegal to discriminate on the basis of a disability or age, there is no clarity in the legislation about denying entry to a person who is not able to have a vaccine because of an underlying health condition or simply because they are too young. This ambiguity creates risk that a person who is unable to have a vaccine could bring a claim based on a breach of anti-discrimination legislation.

To compound the issue, businesses need to comply with the Australian Consumer Law, which prohibits conduct that might be interpreted as misleading or deceptive; they can’t mislead about the reasons for denying entry.

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Currently, businesses don’t breach discrimination laws by refusing access to unvaccinated patrons, customers and clients. However, they are exposed to the risk of a lawsuit where there is indirect discrimination; for example, where an underlying medical condition prevents a person from having a vaccine and the business does not allow for reasonable flexibility in the application of their policy. If a person can’t be vaccinated due to their disability or some other attribute that is protected by law, then the risk of a discrimination action looms large. 

The solution

Whilst it will not be easy for the government to come up with rules that keep both businesses and consumers happy, the current uncertainty is unfair to business operators, of any size, who are doing their best to recover in a post-pandemic environment.

One possible solution would be to set rules, which make it lawful to exclude entry or services to an unvaccinated person where:

  • The staff member providing the service needs to be in proximity to the customer; for example, a hairdresser, manicurist, massage therapist, physiotherapist; or
  • The business operates indoors where customers and staff do not have a minimum of four square metres space per person and cannot practise appropriate social distancing.

Alternatively, the government could decide that unvaccinated people may have full and free access to all premises yet require that they wear facemasks and present proof of a negative COVID test in the previous 14 days.

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It is also obvious that there are examples where it would simply be unreasonable for an unvaccinated person to be refused entry, such as to outdoor sporting facilities or sparsely populated indoor areas. 

On the other hand, however, it would seem quite unfair to expose employees to a risk of infection in crowded hospitality venues, bars, pubs and clubs if unvaccinated persons were permitted to attend.

Fair and reasonable minds will differ in their opinion as to what is fair and appropriate – but having certainty as to the rules will at least let business get on with the challenge of recovery.

In my last op-ed,Cut the ‘jab-erish’ on mandatory vaccinations”, I highlighted that without legislated certainty, it seems inevitable that in time, businesses are going to be sued by three different groups – their staff, their customers, and their neighbours.

Clarity creates confidence, whilst confusion leads to indecisiveness and insecurity. Both businesses and customers are struggling to decide what they stand for and to determine what is right. Throughout history, when knowledge runs out, panic and often violence steps in. We’re a civilised democracy, right?

Travis Schultz is the managing partner of Travis Schultz & Partners.

COVID-19 conundrum – a legislative nightmare
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