Changes to the NSW Public Health Orders – what do employers need to know?

Changes to NSW Public Health Orders over the weekend have provided greater clarity for employers employing ‘authorised workers’ living in the 12 areas/LGAs of concern in Sydney.

Up until last weekend employers were required to set up Rapid Antigen Testing Regimes for ‘authorised workers’ travelling outside of their LGA of concern as an alternative to receiving a dose of COVID-19 vaccine. From our feedback, this exercise would have been expensive for employers and providers of this service could not be guaranteed. The changes to the NSW Public Health Orders over the weekend have removed this requirement.

However, new requirements apply to ‘authorised workers’ living in the areas/LGAs of concern who leave their area/LGA for work, as outlined below.

Areas/LGAs of concern:

• the Local Government Area of Bayside
• the Local Government Area of Blacktown
• the Local Government Area of Burwood
• the Local Government Area of Campbelltown
• the Local Government Area of Canterbury-Bankstown
• the Local Government Area of Cumberland
• the Local Government Area of Fairfield
• the Local Government Area of Georges River
• the Local Government Area of Liverpool
• the Local Government Area of Parramatta
• the Local Government Area of Strathfield
• the suburbs of Caddens, Claremont Meadows, Colyton, Erskine Park, Kemps Creek, Kingswood, Mount Vernon, North St Marys, Orchard Hills, Oxley Park, St Clair and St Marys (within the Local Government Area of Penrith).

A person who lives in an area/LGA of concern in Sydney:

• cannot leave the area of concern in which they live for the purposes of work, unless they are an authorised worker (from 28 August 2021, authorised workers must have a permit issued by Service NSW)
• From 6 September 2021, an authorised worker (who is at least 16 years of age) must not leave the area of concern for work unless the worker has had one dose of COVID-19 vaccine or has a medical certificate indicating a medical contraindication and carries the required evidence. However, this does not apply if the person has not been in the area of concern in the previous 14 days.

The Order applies to an authorised worker leaving their area/LGA of concern to work in another area/LGA of concern, as well as an authorised work leaving their area/LGA of concern to work in an LGA that is not impacted (i.e. outside the 12 areas/LGAs). The current health orders appear not to apply authorised workers living and working in their area/LGA of concern. We understand that this matter is under consideration.

Employers of employees living in the 12 areas/LGAs of concern can therefore provide a lawful and reasonable direction to ‘authorised workers’ that leave their area/LGA of concern to work, to comply with the Public Health Orders and receive one dose of the vaccine. It is reasonable in the circumstances for employers to request proof of receipt of a first dose of COVID-19 vaccine or a medical certificate indicating a medical contradiction to ensure compliance with the Public Health Orders. It is also recommended that, if required, employers consider assisting employees in obtaining permits as required by Service NSW to leave their LGA to attend work.

Further, a person cannot enter an area/LGA of concern to carry out work unless they have a permit issued by Service NSW. For further information see:

Public Health Orders and restrictions – COVID-19 (Coronavirus) (nsw.gov.au)

There are requirements for construction workers living in an area/LGA of concern (LGAs where employees cannot leave for work unless they are an authorised worker) to work in construction in Greater Sydney unless they carry proof that they have had:

• at least 2 doses of a vaccine, or
• 1 dose of a vaccine at least 21 days ago, or
• 1 dose within 21 days and have had a COVID test within the last 72 hours, or
• proof from a GP that they have a ‘medical contraindication’ to the vaccine and evidence of a COVID test within 72 hours.

There is a requirement on the occupier to ensure that the person has the required evidence.

The required evidence is as follows:

• proof of address
• and:
  • evidence from the Australian Immunisation Register that the person has had 1 or 2 doses of the vaccine
  • evidence that the person has been tested for COVID
  • a medical certificate showing the medical contraindication.

Employers of construction workers living in the 12 areas/LGAs of concern can provide a lawful and reasonable direction to ‘authorised workers’ that leave their area/LGA of concern to work to comply with the Public Health Orders. It is reasonable in the circumstances for employers to request proof of receipt of 2 doses of COVID-19 vaccine, or one dose and a COVID test within 72 hours or a medical certificate indicating a medical contradiction to ensure compliance with the Public Health Orders.

(ii) Staff (including contractors) of a residential aged care facility (RACF) and persons engaged by the operator to provide services, including health practitioners engaged by the operator, (other than students and certain maintenance contractors) are required to have received the first dose of the COVID-19 vaccination in order to enter or remain at the RACF after 9am on 17 September 2021. (The Public Health (COVID-19 Aged Care Facilities) Order 2021)

The Order also requires students on placement and health practitioners engaged by a resident to have received the first dose of the COVID-19 vaccination in order to enter or remain at the RACF after 9am on 31 October 2021.

(iii) Heath care workers are required to have a first dose of a vaccine by 30 September 2021, with a second dose required by 30 November 2021. This includes a person who does work in a private health facility, being a private hospital or day procedure centre.

Government Gazette No 411 of Thursday 26 August 2021 (nsw.gov.au)

In the case of (ii) and (ii) above, workers will need to provide evidence of having received a COVID-19 vaccination if requested to do so by their employer. Employers will be able to request this information. An exemption is available for a worker if they are unable to be vaccinated a due to a medical contraindication. Workers will be required to provide evidence of a medical contraindication via a certificate from a medical practitioner, in a form approved by the CHO, that specifies the medical contraindication.

(iv) A worker living in Greater Sydney must not enter premises for work that are more than 50 kilometres outside Greater Sydney unless the worker has been tested for COVID-19 in the previous 7 days and has evidence of the test available for inspection by their employer or a police office (this requirement does not apply to workers leaving the other areas subject to stay at home rules).

A breach of orders made under the Public Health Act 2010 is a criminal offence and attracts heavy penalties.

In the case of an individual, the maximum penalty is $11,000, or imprisonment for 6 months, or both and a further $5500 penalty may apply for each day the offence continues.

For more information on the impact of the updated NSW Public Health Orders on your workplace, please contact John at jmckenzie@mapien.com.au or 0418 218 468.