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Do “no jab, no entry” policies constitute discrimination?

Mandatory vaccination is a key feature of the Victorian and New South Wales governments’ roadmaps out of lockdown.

Patrons of pubs, restaurants and cafes will be required to be vaccinated against COVID-19 to enter. Some have claimed that vaccine mandates are discriminatory.

However, Mr Liam Elphick, Associate Lecturer in the Faculty of Law (Monash University) reports that legally it is not discriminatory.

Businesses may actually be breaking the law if they do not have a “no jab, no entry” policy. Work health and safety laws require employers to take steps to reduce workplace risks, to both workers and customers.

Discrimination laws prohibit distinctions based on particular attributes, which are largely traits we cannot change and have been used to justify the marginalisation of entire communities – such as sex, race, disability and sexuality,” says Mr Elphick.

“There is no protected attribute for choosing not to be vaccinated against COVID-19.

“Work health and safety laws require employers to take steps to reduce workplace risks. The best way to protect hospitality workers and patrons from COVID-19 is through vaccines.

“While people can choose not to get vaccinated against COVID-19,” says Mr Elphick. “Businesses are equally free to choose not to permit them entry.”

Businesses should also be aware that:

  • Flexibility is needed for those who cannot be vaccinated for genuine medical reasons. Patrons could then be required to provide a negative test result, via a rapid test, when suitable ones become available.
  • Children under 12 years also could be exempt until suitable vaccines are available.

Finally, if the Victorian and NSW vaccine mandates are put into public health orders, and the other states and territories follow suit, this will provide protection for all businesses that apply the mandate.

People can choose not to get vaccinated against COVID-19. But businesses are equally free to choose not to permit them entry.

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