Employers and employees both have responsibilities under the Health and Safety at Work Act 2015. Employers are required to take steps to eliminate or otherwise minimise risks, and employees are expected to follow policies and procedures put in place in their workplace.
The World Health Organisation deemed Covid-19 a worldwide pandemic in March of 2020. All countries are expected to take as many precautions possible to eliminate or minimise its spread. One way New Zealand is doing this is to offer the Pfizer vaccine free to all.
While an employer cannot require any individual to be vaccinated, they can require that certain roles must only by undertaken by vaccinated workers where there is a high risk of contracting and transmitting Covid-19 to others, or if their work is covered by the Covid-19 Public Health Response (Vaccinations) Order 2021.
To decide if a role/position is high risk and therefore needs vaccination for Health and Safety reasons, an employer must first assess their Covid-19 exposure risk. Typical situations to consider are:
- How many people does the employee come into contact with whilst conducting their duties?
- How easy will it be to identify the people who the employee comes into contact with?
- How close is the employee in proximity to other people whilst conducting their duties, and how long does the work require the employee to be in that proximity to other people?
- Does the work involve regular interaction with people at high risk of severe illness from Covid-19?
- What is the risk of Covid-19 infection and transmission in the work environment compared to the risk outside of work?
- Will the work environment continue to involve regular interaction with unknown people if the region is at a higher alert level?
Employers must include their employees in the risk assessment process. During this process it may be determined that work arrangements or duties can be changed such that a role/position is no longer high risk. Employers and employees should work together to reach a mutually agreed outcome.
If, as a result of the Health and Safety Exposure Risk Assessment process (“the assessment”), it is deemed that a role/position can only be undertaken by vaccinated staff, employers should set a reasonable timeframe for employees to decide if they will be vaccinated. If during this time an employee cannot work, special paid leave should be considered; especially in the short term while employers and employees discuss what happens next.
An employee does not need to disclose or prove their vaccination status to an employer; and they cannot be redeployed or disadvantaged for refusing to disclose their vaccination status, unless it is determined under the assessment that their role cannot be completed by unvaccinated employees.
If a role is determined under the assessment to be high risk that requires an employee to be vaccinated, an employer can ask an employee if they are vaccinated. If the employee does not disclose or provide evidence of their vaccination status, the employer has the right to assume they have not been vaccinated. However, employers will need to ensure they have previously informed their staff of this assumption and what will happen if an employee is not vaccinated or does not disclose their vaccination status.
Collecting, storing and sharing information about employees’ vaccination status must be done in accordance with the Privacy Act 2020.
On 26th of October 2021, the Government announced new legislation around what type of roles vaccination will be mandated. This is to align with the recently announced Covid-19 Protection Framework. The Government is currently in the process of working with businesses and unions on when this mandate will come into effect and further guidance will be available. This is a rapidly changing and developing area. Call us at Galbraiths for up to date advise on Covid related issues.