Calls for advice on ban of unvaccinated customers
Business owners want clear advice from the Government on whether they are within their rights to turn away unvaccinated customers, industry groups say.
Despite a lack of official guidance on the issue, major firms Russell Mcveagh, PWC and Mediaworks all recently said that only vaccinated customers, visitors and staff would be allowed on their premises.
Businessnz and Tourism Industry Aotearoa say many businesses want to ban unvaccinated customers but are hesitant to do so because they fear legal action.
Buddle Findlay employment and health partner Sherridan Cook said private businesses could decide who entered their premises. ‘‘It’s probably going to be a legitimate step by a lot of businesses to take.’’
But businesses also needed to be compliant with the Human Rights Act, he said, which prohibited discrimination on a range of grounds.
In the context of businesses turning away unvaccinated people, the grounds for discrimination could include disability or religious or ethical beliefs, he said.
A business could face a discrimination claim before the Human Rights Commission if a banned customer could prove they were unvaccinated for disability, religious or ethical reasons, he said.
But people who were unvaccinated because they thought the vaccine was unsafe were ‘‘not going to have any claim whatsoever’’.
A claim was also likely to fail if an unvaccinated person was turned away from a business but could still access its services online, such as an accounting or insurance firm.
‘‘The percentage of people who will actually be able to bring a claim is probably going to be relatively small,’’ Cook said.
If a workplace had done a health and safety assessment of the risk of having unvaccinated customers come into the store, that would give them a legitimate defence against any discrimination claim, he said.
Businesses should have legitimate health and safety reasons for imposing vaccine mandates, he said.
If the Government did not make it clear whether customers needed to be vaccinated, businesses would need to make that assessment themselves, he said.
A Covid-19 group spokeswoman from the Department of the Prime Minister and Cabinet said business owners had the ability to set their conditions of entry, but they need to ensure that any conditions in place were non-discriminatory and complied with legislation covering people’s rights, such as the Human Rights Act.
The Government was working through a range of considerations, including the use of a domestic vaccination certificate, public health and legal requirements, and guidance for businesses, services and individuals, she said.
‘‘What we put in place domestically will inform a significant part of the planning to reconnect New Zealand with the rest of the world.’’
Considerations included an exemption framework, the need for non-digital options, and the need for vaccine proof that worked in New Zealand and overseas, she said.
The New Zealand Customs Service was also working on the development of a new traveller health declaration system, which would incorporate travellers’ vaccination status, she said.
Consumer NZ chief executive Jon Duffy said it was not yet clear whether businesses were allowed to exclude unvaccinated customers from their premises.
‘‘On one hand, individuals are within their rights to refuse the vaccination. And if they do, the Human Rights Act says they can’t be discriminated against on a range of grounds including disability, pregnancy and religious or ethical beliefs,’’ Duffy said.
‘‘On the other hand, businesses are required to ensure their workplace is safe for workers and customers. Businesses will need to weigh up these competing obligations and responsibilities.’’
In the meantime, Consumer NZ wanted clarification from the Government on the issue, he said.
Businessnz chief executive Kirk Hope said many businesses wanted to introduce some kind of mandate but may have concerns that they would end up overstepping the law.
‘‘It’s probably going to be a legitimate step by a lot of businesses to take.’’ Sherridan Cook Buddle Findlay