Vaccination Confusion Continues, So We’ve Asked A Workplace Lawyer

With regional Victoria and New South Wales clinics opening up and a glimmer of hope for open doors come that all-important double vaccination rate, the industry has more questions than ever.

COVID and the resulting lockdowns have brought many hard questions from our industry and none more common, as ‘freedom day’ draws closer, is whether or not clients will have to be vaccinated before receiving treatments in Melbourne and Sydney clinics.

We’ve already seen that clinics in regional Victoria and New South Wales have been able to reopen to clients without the need to check vaccination status. However, there is talk that businesses in Metropolitan Sydney and Melbourne may only be able to open to fully vaccinated clients. At the time of publishing, there are no strict guidelines in place for any Australian state.

State governments are yet to make up their mind

NSW Premier Gladys Berejiklian told reporters on Monday 13th that unvaccinated people will not get the same freedoms as the fully vaccinated. However, she said the government had not finalised its plan for precisely what the rules would be once the state reaches its 80 per cent vaccination target.

The Premier suggested it could be up to businesses to decide whether or not they accept unvaccinated patrons, rather than a government mandate. “Or government might decide what freedoms can exist for people, but we have not come to those conclusions yet,” she said.

It’s a confusing and frustrating situation and the uncertainty is taking its toll. The financial impact of only serving fully vaccinated clients is yet to be seen. But it’s the ethical dilemma that has some clinics concerned.

Clinics don’t want to be turning away clients

The Aesthetic Skin Clinic and Maddison posted their statement on Instagram.

Maddison Temelkovski, founder of The Aesthetic Skin Clinic in Melbourne, is concerned about the impact vaccine mandates may have on her clients. She took to Instagram to make it clear that her business will not be turning anyone away. She told us on putting up the post, “We’ve had a lot of clients over the last few weeks reaching out to us about our stance on the matter. It’s our duty of care to inform our clients of our guidelines. We wanted to announce that we will be accepting everyone into our clinic and make it clear that we will not be turning people away simply for not being vaccinated.

“We have clients who are choosing to wait for personal medical reasons, pregnant and breastfeeding clients and also some that haven’t had the chance yet to be vaccinated. Therefore, I believe it’s not right to only be treating individuals who are vaccinated. We have worked on and off throughout the pandemic in a safe space that has COVID safe protocols approved by the DDHS in place and we believe in welcoming everyone into our clinic at this point in time.”

“I think the government is definitely trying to pass the buck onto businesses to mandate it however I don’t think it’s fair that we have to take on that pressure on top of everything we have already gone through with our closures on separating our clients and refusing them entry.”

“We will abide by government guidelines as we always have however we would hate to have to run our business this way,” she continued.

A legal perspective

One of the biggest concerns in this situation is the prospect of discriminating against clients due to their vaccination status. To get some clarity, we spoke with Jennifer Bicknell from Bicknell Law and Consulting who specialises in workplace law.  While this shouldn’t be used as professional legal advice, Jennifer’s expertise may help to ease some concerns until state governments make any mandates clear.

Can a business owner legally ask their clients and staff about their vaccination status?

JB: A business owner can legally ask their clients and staff about their vaccination status if the business owner is required to or authorised by law (such as a public health order) or if the collection of the information is reasonably necessary for one or more of their functions or activities, and the person consents to the collection of the information. 

Jennifer Bicknell Law and Consulting Vaccination status
Jennifer Bicknell shares a legal persepctive.

It may be reasonably necessary for a business to ask about vaccination status to prevent the spread of COVID-19 in the workplace. This can depend on public health advice, the health and safety risks within the workplace, and any relevant WHS laws.  

If a business determines that it is necessary to require the vaccination status from an individual they also need to ensure that the individual gives informed and voluntary consent. 

To make sure the consent is informed, the business needs to give the individual the details of why the business requires the information and how it will be used. In limited circumstances, businesses may be legally allowed to collect this information without consent if they are required to by law. 

The vaccination status of a person is considered “health information” and is treated as sensitive information under Privacy Act. This means that the information has higher privacy protections. It is critical that businesses that are required to comply with the privacy Act do so. 

Before business owners request the vaccination status of their clients or employees, they should seek legal advice to ensure they are complying with the law. 

Can a business owner legally choose not to provide a service to someone who is not vaccinated?

JB: In some states, for the foreseeable future, government health orders will dictate whether business owners are permitted to offer services to unvaccinated people. Apart from this, business owners can legally choose not to provide a service to someone who is not vaccinated – provided that they do not breach discrimination laws. 

 Discrimination laws prohibit treating someone differently because of a protected attribute such as disability, age, sex, religion or pregnancy. If a person is not able to be vaccinated (for example, because of a medical condition) and they are denied access to goods or services, they may allege disability discrimination. Whether such a claim would be successful is unclear. It is likely that there will be cases about this in the coming months.  

For now, business owners may prefer to consider each person’s circumstances individually, rather than adopting a blanket position, particularly with respect to customers who are legitimately medically exempt from vaccination.  

Beyond the legislation

It’s an understandably tough position to be in to have to be asking clients about their vaccination status and potentially face turning them away if they are not fully vaccinated. However, there are circumstances where you’ll need to know a client’s vaccination status in order to avoid contraindications in their treatment. The major player here, is injectables.

ASAPS and ASCD released their official guide on treating patients who have had the COVID-19 vaccine earlier this year. The main points conclude that patients should not be injected with filler or neurotoxins two weeks prior or post their vaccination to avoid potential reactions such as swelling.

Skin Correctives took to Instagram to explain their stance on the vaccine.

A Wollongong and Shell Harbour based clinic, Skin Correctives, also believe that knowing a client’s vaccination status is important for treatment. They took to social media to let followers know they’ll be asking every client in order to choose the right treatment options writing in their caption, “Many of the advanced treatments that we do, challenge the skin and rely on your skin’s immune system to achieve results, so we don’t’ want to do advanced treatments when your body is using all its resources to respond to the vaccine. If we know you have had a vaccine, we can rather do treatments that support the skin’s immune system.”

While the debate around whether you should or legally can ask clients their vaccination status is set to continue, it’s clear that clarity from state governments would certainly help to dispel a lot of the stress surrounding the situation. We’ll continue to update you as more is announced.

Until then, will you be asking your clients about their vaccination status before treatment? Let us know in the comments.

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