Currently, throughout the business community, we are witnessing uncertainty with respect to business owners asking the question – should we ask customers about their vaccine status? Or not?
This is an understandable question when faced with the 53 pages that make up the Public Health (Covid-19 General) Order, dated 3 October 2021 (‘the PHO’). And that Public Health Order has been amended many times since, which only adds to the confusion.
In this note, I will lay out the legal elements of what is required, and what can and cannot be done, by a Business Owner when receiving customers onto their premises.
If you’re interested and want to read along, a copy of the Public Health Orders can be downloaded here.
Under the PHO, Business Owners only really need to look at s.5.3(2).– Business Owners are Only required to have folk check-in using their phone/QR code, or if folk haven’t got their phone handy, then the Business Owner must manually record the name and telephone number of their customer – only their name and telephone number – nothing more is required.
A Business Owner is Not Authorised to verify the vaccine status of a customer. Nowhere under the PHO is that required, so as it is Not Required under the legislation, you don’t do it.
We have all pretty well known or suspected the vaccine status of a customer/client is the Health Information of the customer, and as such is Personal Information that is protected from disclosure at Common Law, (and various pieces of legislation), where only Authorised Officers (for instance a Police Officer, or Health Department Officer), can access or request access to such information under certain circumstances, pursuant to certain legislative powers that do not extend to Business Owners.
Thus, requesting the vaccine status of a customer is Off Limits to a Business Owner – end of story.
A Business Owner is Only required pursuant to s2.18(1) of the PHO to undertake the following: ‘The occupier of the following premises in the general area must take reasonable steps to ensure that an unvaccinated adult is not on the premises’.
It follows then, that the Only ‘reasonable steps’ a Business Owner can take, is compliance with s5.3(2) above, to get people to scan-in, or write down their name and phone number – and that’s it, legally speaking.
In fact the only way the current PHO can be properly understood, is to realise that the legal burden is Not on the Business Owner per se, rather that, the Legal Onus Is On The Unvaccinated Person To Not Attend Non-Essential Businesses.
So under the current Public Health (Covid-19 General) Order, the above is really all a Business Owner need do – QR scanning or name/telephone number recording, that’s it .. push any more, and you start pushing against the law.
Julian Gillespie – LLB, BJuris, Suffolk Park
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