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With the more infectious Delta strain now in New Zealand, and the country split into different Alert Levels, the landscape for operating has changed.  All businesses need to be thinking about the risks of transmitting or contracting COVID-19 in the workplace and how they can respond and adapt.

The Government’s directive for employees to be vaccinated is limited – covering for example managed isolation/quarantine and those working at the border.  For everyone else, employers need to set their own policy, which may be different for existing or new employees, and will depend on their health and safety risk assessment for the particular role.

Existing employee?

For existing employees, the position an employer can take will depend on the level of health and safety risk COVID-19 poses in their particular role.

New employees?

For new employees, businesses can make vaccination a condition of employment.

Human rights laws

There are provisos to requiring vaccination, including that not everyone can be vaccinated, including due to medical conditions or religious beliefs.  Human rights laws against discrimination and giving everyone the right to refuse medical treatment are relevant and having a health and safety risk assessment that supports vaccination as a requirement of a role for new hires will assist in defending any possible claim under this head.

Risk assessment requirements?

All businesses should:

• Completed risk assessments for each role title, in the same way as would occur for any other hazard, in accordance with their health and safety management plan. The starting point is to assess the likelihood of the risk occurring and the potential harm and appropriate controls for that risk. For example, controls can include physical distancing, PPE like masks and/or use of hand sanitiser and/or vaccinations where needed; and
• Use this to inform the approach to vaccination and communicate to employees about this. Best practice is to implement a Vaccination Policy.

 Where the risk is assessed as being high, for example due to the close interaction a role is required to have with high risk people, such as in an aged care facility, this may provide justification for mandatory vaccination.

For most workplaces, mandatory vaccination will not be justified.  In that case, an employer may encourage vaccination instead including for example by incentivising vaccination, or educating employees about the workplace risks for them.

Message for Employers

We can help with:

• advice on vaccination queries and health and safety risk assessments;
• preparing a policy that is fit for your business. We have a current fixed price offer for our COVID-19 Vaccination Policy and necessary risk assessments for roles within the business – $1,000 plus GST; and
• providing a vaccination clause for employment agreements and conditional employment offers.

Disclaimer: We remind you that while this article provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.