COVID-19: risking it all

There has been much speculation about COVID-19 vaccine mandates for health and childcare workers in the past weeks. On 11 October 2021 the government finally provided some certainty, announcing at a press conference that teachers, pharmacists, aged residential carers, paramedics and more will now join MIQ and border workers on the list of roles requiring vaccination against COVID-19.

But what about those industries that fall outside the mandate? Should employers implement mandatory vaccines across the board anyway to fulfil their obligations under the Health and Safety at Work Act 2015 (HSWA)?

Our advice would be to slow down and consider all your risks. A careful balance must be struck between your duties under the HSWA, and as an employer under the Employment Relations Act 2000 (ERA) and Human Rights Act 1993 (HRA). To mitigate your risks under the ERA and HRA, best practice would be to perform a health and safety risk assessment, with consultation, before making any sweeping decisions.

Recent updates to MBIE and WorkSafe’s websites include more guidance about dealing with the risks presented by COVID-19. WorkSafe has published a template COVID-19 safety plan to assist employers in designing policies and practices to minimise exposure to COVID-19.

In terms of risk assessments, WorkSafe has indicated that employers should ask themselves the following questions:

  • How many people does the employee carrying out that work come into contact with? (very few = lower risk; many = higher risk)
  • How easy will it be to identify the people who the employee comes into contact with? (easy to identify, such as co-workers = lower risk; difficult to identify, such as unknown members of public = higher risk)
  • How close is the employee carrying out the tasks in proximity to other people? (2 metres or more in an outdoor space = lower risk; close physical contact in an indoor environment = higher risk)
  • How long does the work require the employee to be in that proximity to other people? (brief contact = lower risk; lengthy contact = higher risk)
  • Does the work involve regular interaction with people considered at higher risk of severe illness from COVID-19, such as people with underlying health conditions? (little to none = lower risk; whole time = higher risk)
  • What is the risk of COVID-19 infection and transmission in the work environment when compared to the risk outside work? (equal to outside work = lower risk; higher than outside work = higher risk)
  • Will the work continue to involve regular interaction with unknown people if the region is at a higher alert level? (no = lower risk; yes = higher risk).

Throughout it all, employers must ensure that they are consulting with their employees to address any identifiable risk and consider any/all alternative options before taking action. This could include increased educational initiatives, time off work to obtain a vaccine, redeploying employees to a non-customer facing role or providing employees with alternative protective equipment instead. Employers should soon be able to add rapid antigen tests to that suite of protection.

It may surprise employers to learn that WorkSafe currently says that following risk assessments, only a minority of roles in New Zealand should need to be performed by vaccinated workers. That position is arguably overly cautious and WorkSafe’s guidance might evolve as the community outbreak evolves. The key takeaway for employers is that a blanket mandate for all roles to be performed by vaccinated workers is not going to cut it. Employers need to perform a separate risk assessment for each role, or type of role.

Employers face inherent difficulties with duelling obligations under the HSWA, ERA and HRA. We do not expect the Government to go much further in its mandate for certain roles to be performed by vaccinated workers, other than potentially for the Police and for hospitality workers once vaccine certificates are introduced.  Roles which fall outside of the Government’s vaccine mandate will have to undergo a case-by-case assessment as above.

The issues discussed above can be incredibly difficult to navigate.  Please do not hesitate to reach out to a member of Lane Neave’s Employment Law and Health and Safety Team if we can assist.

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