Vaccinations are a hot topic. The media is dominated by headlines on vaccination rates, the government’s goal of 90 per cent vaccination of the eligible population, vaccination certificates, Public Health Response Orders mandating vaccination for certain categories of workers, and businesses mandating vaccination or implementing 'no jab, no entry' policies. With this messaging, it is little surprise that employers are starting to consider whether they can, and if so should, mandate vaccinations in their own workplace.
Under New Zealand’s health and safety legislation, persons conducting a business must take all reasonable and practicable steps to minimise risk to the health and safety of their workers. Employers may require work to be undertaken only by vaccinated employees if a risk assessment identifies this is necessary for health and safety purposes.
What is a risk assessment?
Broadly, a risk assessment would consider the likelihood of a worker being exposed to COVID-19 in the performance of their role and the consequences for others if that worker were to be exposed to COVID-19. The risk assessment should focus on the role undertaken by the worker, not the individual employee in the particular role.
Who should complete the risk assessment?
The risk assessment should be undertaken by the employer in consultation with employees and their representatives, including any applicable union(s).
What should a risk assessment include?
On 4 October 2021 WorkSafe published updated guidance on how to decide what work needs to be done by a vaccinated employee. The guidance sets out that an employer should:
- Consider the risk factors. For example, how many people does the employee carrying out the work come into contact with? The more people the employee comes into contact with, the higher the level of risk. See the WorkSafe website for additional questions to consider. Employers will also need to consider if there are any additional risk factors specific to their business, or parts of their business.
- Consider other controls that could be put in place to reduce the risk. For example, are mask wearing and contact tracing sufficient measures to reduce the risk of COVID-19 within the context of the business?
- Assess the results of the risk factors and the impact of any extra controls.
If the risk factors are high and that risk cannot be reduced by implementing additional controls, employers should consider whether the work should be performed only by a vaccinated employee. It may be that additional controls are required (even alongside vaccination) to reduce the risk to an acceptable level.
The issues surrounding vaccination mandates, including but not limited to the impact of risk assessments, change rapidly – sometimes it feels like new developments arise daily. What is clear is that the Government is expanding the vaccination mandate to ever-widening categories of people, although compulsory vaccinations for all is still deemed a bridge too far.