The recently created risk assessment tool – a refinement of an earlier risk assessment for staff – may assist in helping employers decide whether workers can only carry out their roles by being vaccinated.
Importantly, the tool is now given legislative force through the passing on 15 December 2021, of the COVID-19 Public Health Response (Vaccinations Assessment Tool) Regulations 2021.
The assessment tool is intended to cover those employees not already operating under previous mandatory vaccination regulations.
The question an employer must ask is: is it reasonable for a Person Conducting a Business or Undertaking (PCBU - i.e. the business) to require workers not to carry out work for the PCBU unless they are vaccinated?
The four factors to consider are:
- What type of environment does the worker work in? If it is an internal area that is less than 100 square metres, the answer is yes. If it is an outside or an internal area that is at least 100 square metres, the answer is no.
- Is a worker, during all or part of their time working, carrying out work in circumstances in which being able to maintain physical distancing of 1 metre or more is unreasonable? If so, the answer is yes. If physical distancing is reasonable, the answer is no.
- Does the worker carry out work for more than 15 continuous minutes at a distance less than 1 metre from the same individual? If so, the answer is yes. If not, the answer is no.
- Does the worker provide services to people who are vulnerable to COVID-19? This means people who are under the minimum age to be vaccinated, are medically exempt from being vaccinated, or are at higher risk of severe illness from COVID-19. If the worker does not provide services to vulnerable people, the answer is no. If they do, the answer is yes.
If an employer ascertains that the answer is yes for at least 3 of the 4 factors specified above, it is reasonable for them to require a worker or class of workers to be vaccinated to carry out work.
The employer has some discretion prescribed by the Regulations. If an employer completes a risk assessment using the tool and determines it is reasonable to require workers to be vaccinated, they can still decide not to require vaccination. However, the employer will need to be able to justify this decision and ensure that they are meeting their health and safety obligations.
Before making the decision to not require vaccination, the employer must consider whether other reasonable measures are available to them to eliminate or minimise the risk of exposure to and transmission of COVID-19 associated with the work, and must take into account the outcome of consultation with their workers so far as is reasonably practicable, as well as any other factors they consider relevant.
See the COVID-19 Public Health Response (Vaccinations Assessment Tool) Regulations 2021 here.
For further information or assistance with navigating your employment law needs, please contact our Employment Team.
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Troy has an extensive background in employment law and has regularly appeared in the Employment Relations Authority and the Employment Court. He also advises on day-to-day employment issues, developing employment policies and agreements, implementing disciplinary procedures (and conducting disciplinary meetings and investigations).
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