As New Zealand gets ready for the new traffic light system and living with COVID all employers should be taking steps to address the risks that COVID-19 presents in the workplace and how these risks can be best managed. There are a lot of questions being raised. We have put together this short guide and flowchart of the things that all employers of sizes should be considering and putting in place now. This includes employers considering whether vaccination against COVID-19 is a reasonably practicable and necessary step to adequately manage the workplace risks presented by COVID-19.
As a starting point, employers generally cannot require employees to be vaccinated. There are two exceptions to this general rule. Employers may require vaccinations of:
- workers who are statutorily required to be vaccinated under the Vaccination Order; and
- workers whose roles are assessed in a health and safety risk assessment as needing to be performed by a vaccinated person.
A third exception will be “close contact businesses” where the organisation must use vaccination certificates once these are available as workers in those businesses will need to be vaccinated to perform their roles under the COVID-19 Protection Framework.
For all other employers, it will be open to them to implement mandatory vaccination requirements for existing and new employees, provided that privacy rights, health and safety considerations, and individual employee circumstances are considered as part of an employer complying with consultation obligations and statutory duties of good faith. Our previous guidance regarding this is available here. The focus is whether, from a health and safety perspective, work needs to be done by vaccinated workers.
Many large organisations in New Zealand have already taken steps to address whether work needs to be performed by vaccinated workers in accordance with either the Vaccination Order or the organisation’s health and safety risk assessment. However, it is hard for small and medium size businesses to know where to start.
There are a number of key steps that a Person Conducting a Business or Undertaking (PCBU) and/or employers can and should be taking now in order to manage health and safety risks within their workplace and workforce. These steps, and publicly available guidance regarding this, are set out below.
Employers should get legal advice at each stage of this process to ensure that the actions taken are in line with employment, health and safety, and privacy law requirements.
1. Conduct an anonymous workplace survey
- Start by conducting an anonymous workplace survey to understand whether staff are vaccinated and, if they are not vaccinated, why they are not vaccinated.
2. Conduct a non-anonymous workplace survey
- Conduct a formal, non-anonymous workplace survey – data is helpful in deciding what to do next. Employees are not required to disclose their vaccination status, but if an employee chooses not to disclose their status an employer may assume that the individual is unvaccinated (provided that employees are told about this assumption when the information is requested).
- Employers must comply with their privacy obligations under the Privacy Act 2020 when collecting, storing, using, and disclosing an individual’s vaccination information.
3. Conduct a health and safety risk assessment
- Unless the whole workforce falls under the Vaccination Order or the upcoming vaccination certificate requirements, the PCBU/employer should conduct a health and safety risk assessment in accordance with WorkSafe’s guidance in order to determine whether a role needs to be performed by a vaccinated person. The employer should also consult on the risk assessment.
- The Government is soon to announce a new statutory risk assessment process that employers should follow once it is in place. In the meantime, employers should ensure that they comply with WorkSafe’s current guidance.
4. Prepare a draft policy
- The policy should set out what roles needs to be performed by vaccinated people, whether people need to be vaccinated in order to enter the workplace, and what other measures are being put in place to control the risk of COVID-19.
5. Consult with employees
- As part of the statutory duty of good faith, employers need to consult with employees regarding the risk assessment and draft vaccination policy before these are finalised. This consultation process provides employees with an opportunity to provide feedback before the policy is implemented.
6. Finalise and implement the policy
- Once employees have been consulted, the employer should finalise and implement the vaccination policy. The policy should be readily available to all employees and any other individuals (such as contractors, volunteers, and clients) that it may apply to.
7. Engage with unvaccinated employees on an individual basis
- It is important to remember that employment law continues to apply even if work cannot be performed by unvaccinated employees. The Government is working to create legislation that will clarify how employment law applies in relation to COVID-10 vaccination in the workforce.
- Employers must engage with each unvaccinated employee on an individual basis to determine what their vaccination status means for their ongoing employment including considering alternative roles or changes to duties or processes that would not require them to be vaccinated. In addition, employers should consider any reason that the individual asserts for not being vaccinated (e.g. medical exemptions or religious beliefs).
8. Review and if necessary amend your employment documents
- All template employment documents, including recruitment application forms, offers of employment and employment agreements, should be updated to record the requirements of the employer’s vaccination policy.