COVID-19 Vaccinations in the Workplace: Obligations for Employers (Part 3)

Hot on the heels of our first and second articles, the third instalment of our ‘Vaccinations in the Workplace’ series looks at new Worksafe guidelines for deciding whether certain work should be performed by a vaccinated worker.

The push to vaccinate New Zealand’s workforce

At present, it is mandatory for some roles to be carried out only by individuals who have been vaccinated against COVID-19. That has been the case since 30 April 2021, when the COVID-19 Public Health Response (Vaccinations) Order 2021 (“Vaccinations Order”) commenced.

The Vaccinations Order initially applied to certain ‘frontline’ workers, such as aircrew members and those working at MIQ facilities.  However, on 1 December 2021, the Vaccinations Order will be extended to require anyone conducting high-risk work in the health and disability sector (GPs, pharmacists, nurses and midwives, for example) to be fully vaccinated. Then, from 1 January 2022, schools and early learning providers must also ensure that only vaccinated staff, support people, maintenance workers and contractors come into contact with children and students.

What about those jobs and industries not currently subject to a vaccine mandate? As the number of fully vaccinated New Zealanders increases, employers are considering how best to protect both staff and customers. Many employers will want to make it mandatory for their workers to be vaccinated. What process must be followed when assessing whether they can introduce a vaccine mandate?

New risk assessment guidelines

Employers with workers in roles that are not subject to the Vaccinations Order must carry out a risk assessment before making it mandatory for those roles to be occupied by vaccinated workers only. That risk assessment must identify vaccination as necessary from a health and safety perspective.

Previously, there was little guidance for employers on the issues to consider when assessing the necessity of vaccination. In the first of our ‘Vaccinations in the Workplace’ series, we noted that employers would need to assess:

• The likelihood of the worker being exposed to COVID-19 while performing the role in question; and
• The potential consequences of that exposure on others.

Worksafe has now published a more thorough list of factors for employers to take into account when assessing risk. In deciding whether to make it mandatory for a particular role to be carried out by a vaccinated worker, employers should now consider:

• How many people the employee comes into contact with when performing the role (many = higher risk);
• How easy it is to identify the people with whom the employee comes into contact (difficult = higher risk);
• The employee’s proximity to others when performing the role and the length of time during which the employee will be in close proximity to others (close, prolonged proximity = higher risk);
• Whether the role involves regular contact with people at higher risk of developing severe illness from COVID-19 (regular contact = higher risk);
• The risk of COVID-19 infection in the relevant work environment compared with the risk outside of work (higher than outside of work = higher risk); and
• Whether the work will continue to involve regular interaction with unknown people even at a higher alert level (continued regular interaction = higher risk).

If the risk rating associated with a particular role is high and that risk is not able to be mitigated through control measures such as physical distancing, mask-wearing and PPE, then it may be appropriate for the role to be performed by a vaccinated employee only.

Big question marks remain

Despite Worksafe’s timely guidance, a great deal of uncertainty remains around vaccinations in the workplace. In our view, employers are still subject to considerable risk. Health and safety risks must be minimised so far as is reasonably practicable, but equally, employers wanting to mandate vaccinations in the workplace still need to act in good faith. That will involve including employees and their representatives in the risk assessment process.

The importance of following a robust process when making decisions which may affect an employee’s employment was recently highlighted by the Employment Relations Authority. In WXN v AIA[1], the employer, Auckland International Airport (“AIA”), considered that the employee had come within the scope of the Vaccinations Order. After a consultation process, which included consideration of a proposal put forward by the employee, AIA gave the unvaccinated employee notice. However, the Authority found it was seriously arguable that AIA had not adequately engaged with the employee, nor properly considered alternatives to dismissal. A further hearing will be held to decide whether the employee was unjustifiably disadvantaged by the process AIA undertook.  Click here to read our update on this case.

Risk management is key

With the degree of uncertainty that still exists around workplace vaccination policies, we believe many more employers will be exposed to personal grievances from affected employees in the coming months. Employers who want expert advice on how to navigate these tricky waters and reduce the risk of costly litigation should contact Jaesen, Ruth or Jordan.

[1] WXN v Auckland International Airport Limited [2021] NZERA 439.