Can businesses shut their doors to unvaccinated patrons?

04 September 2021

Bird in Hand Winery’s decision to, from 15 November, only accept patrons who have been fully vaccinated against COVID-19, has sparked lots of opinions.

Some have applauded the winery’s decision to introduce measures to ensure the iconic venue remains a safe environment,  while others have decried the decision on the grounds that is discriminatory.

So, is Bird in Hand’s decision legal? As with many legal questions, the answer very much depends on the particular circumstances.

Employers have a legal obligation to make workplaces safe, and this includes taking measures to minimise the risk of exposure to Covid-19 in the workplace.

At the moment there are no specific laws or public health orders that permit or forbid workplaces introducing mandatory vaccine policies for employees or patrons, save for work health and safety responsibilities to ensure, so far as reasonably practicable, the safety of workers whilst at work.

It all comes down to the “lawful and reasonable test” – what is a reasonable health and safety direction for a workplace to give?

This means that each workplace would need to consider its own unique circumstances, and the positions occupied by workers, and evaluate the health and safety risks of exposure to or possible transmission of Covid-19.  At some point, businesses may well make vaccination policy decisions in response to the expectations of consumers and users of services.

Bird in Hand has clearly made the call that refusing to serve unvaccinated people is a reasonable measure in the current environment, where SA is by and large Covid-free but is constantly under threat from the highly infectious Delta strain wreaking havoc in neighbouring States.

The pandemic is a fluid and evolving situation, and assessing the potential risk at any given point in time can be difficult, but in the absence of any Government orders or guidelines, each business will need to make a decision based on their own circumstances and risk profile.

Hospitality businesses, for example, would generally present a greater exposure risk than many other industries due to the high levels of physical movement and contact.

Businesses who are considering vaccination policies should be careful to ensure they are not unlawfully discriminating against anyone, and there are appropriate exemptions in place – or alternative options considered – for those who cannot comply. It is unlawful to discriminate on the basis of sex, race, age or disability.

While mandatory vaccine policies may not ordinarily offend discrimination laws, businesses should be alive to the possibility of people having legitimate reasons to not be vaccinated. For example, a person may not be vaccinated due to reasons relating to a disability. Whether the refusal to provide goods or services to a disabled person who has a medical reason for being unvaccinated amounts to unlawful discrimination will be dependent on the individual circumstances of the matter, such as the nature of the goods or services being provided, the reasonableness of the policy, and whether alternative arrangements could nave reasonably been made to accommodate the person.

More clarity may come if the Federal Government provides guidance on this issue, or if a policy such as Bird in Hand’s is tested in Court.

In the meantime, businesses should be regularly monitoring current Federal and State health advice and current Safe Work Australia guidelines, and keeping abreast of any new Public Health Orders that may impact them.