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:
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.
Partner
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).
troy.wano@gqlaw.nz | (06) 768-3710
Lawyer
Jaye joined Govett Quilliam in November 2020 after completing her law degree at the University of Canterbury. Jaye practises primarily in the areas of employment law and civil litigation, as well as resource management and environmental planning.
jaye.atkin@gqlaw.nz | (06) 768-3907