If your business or workplace isn’t covered by a government mandate for COVID-19 vaccination, you can choose to do a risk assessment to see if you can require work to be carried out by vaccinated workers, on health and safety grounds.
To do this, your business can either:
Do a health and safety risk assessment using a method you consider fit-for-purpose for your business (including following existing industry guidance), or use the vaccination assessment tool.
It’s up to you to decide what tool you use – businesses have sole discretion to make this decision.
Vaccines are an excellent tool to reduce the risk of COVID-19, but this doesn’t replace all other controls businesses should consider.
Even where a business has implemented a worker vaccination requirement, they will still need to consider whether any further measures should be implemented to minimise the risk of COVID-19 at work including complying with other Government requirements.
Our enforcement approach during the COVID-19 pandemic — WorkSafe
Previous risk assessments
If you had already done a health and safety risk assessment before the vaccination assessment tool was introduced, you don’t need to do a new assessment.
How the vaccination assessment tool works
The vaccination assessment tool consists of four factors. You will need to answer ‘yes’ to at least three factors before it would be reasonable to require vaccination for workers who carry out that work.
Factor 1: Does the worker work in an indoor space that is less than 100m2?
Factor 2: Is it unreasonable for the worker to maintain 1 metre physical distancing from other people?
Factor 3: Is the worker in close proximity to any other person for more than 15 minutes?
Factor 4: Does the worker provide services to people who are vulnerable to COVID-19?
When applying the tool to a particular role or job, you need to think about all of the tasks involved in that role, including those that aren’t performed on a daily basis.
If a worker doesn’t want to be vaccinated, but the tool indicates it is reasonable to require vaccination for their work, or part of their role, then you must comply with your employment law obligations, eg act in good faith and consider any reasonable alternative employment arrangements or redeployment, or other measures that may minimise risk.
Workers covered by the tool
The tool can be applied to anyone who would be considered a ‘worker’ under the Health and Safety at Work Act which would include a contractor and any volunteer who is considered to be a ‘volunteer worker’ under that Act.
Engaging with workers
You need to consult with your workers and their representatives when applying the tool and also about any other appropriate alternative COVID-19 control measures.
You might find that consultation with workers highlights other measures that could minimise risk, or alternative working arrangements, that mean the higher risk factors in the tool may no longer be met, ie that a ‘yes’ answer becomes a ‘no’ answer.
Even if you decide not to use the vaccination assessment tool and use an alternative health and safety risk assessment, you’ll need to consult with workers, under the Health and Safety at Work Act.
Exempting workers
You can exempt any workers from a vaccination requirement you introduce if you think you are still able to appropriately manage the health and safety of workers and others. For example, if you have workers who can’t be vaccinated for medical reasons you might exempt them.
The tool’s outcome
When you use the tool, you’ll get an outcome, telling you if work should be carried out by a vaccinated worker or not. You don’t have to implement the tool’s outcome, but if you decide not to, you have to be prepared to justify your decision.
You must consider the following in the situation where the tool has provided a ‘yes’ outcome, but you do not want to require vaccination:
whether there are any other measures that could reasonably be used to minimise the risk associated with unvaccinated workers doing the work,
the outcomes of consultation on the application of the vaccination assessment tool and control measures, and
any other factors you consider relevant.
Not meeting the threshold to require vaccination
If your work does not meet at least three ’yes’ factors and you decide not to require vaccination, you should still consider whether any measures should be implemented to minimise the risk of COVID-19 at work. You will also need to comply with other Government requirements.
Managing health and Safety – Novel coronavirus (COVID) — WorkSafe
Dealing with third parties that require vaccination
Even if your health and safety risk assessment finds that vaccination isn’t required on health and safety grounds, you might deal with another business or third-party that makes vaccination a condition of doing business with them, or accessing their premises.
You are entitled to make business decisions and to structure your business to meet your clients’ requirements. It would therefore be lawful for you to require that workers assigned to work with particular clients must be vaccinated, where the client has made this a condition of continued engagement. That doesn’t necessarily mean that all workers within your business need to be vaccinated, only those who have to engage directly with clients who have imposed this condition.
You may need to reorganise your workforce so you can meet specific client requirements, ie unvaccinated workers would work with clients who have not required vaccination.
If this isn’t possible, you may need to carry out a workplace change process, which could lead to redundancies.
Overview of workplace change — Employment New Zealand
Challenges to the vaccination assessment tool outcomes
Businesses must engage with workers and their representatives when applying the vaccination assessment tool.
Given how clear and specific the factors in the vaccination assessment tool are, businesses who apply the tool in accordance with the regulations should have confidence that their decision is justifiable.
Usual employment law and processes continue to apply. Employers should take care to be fair and reasonable in their employment decisions and work in good faith with employees and unions before deciding on any employment outcomes.
Employees will be able to bring a personal grievance if they feel they have been unjustifiably dismissed or disadvantaged as a result of a decision their employer has made about vaccination.
Employers and employees can access support from MBIE’s employment early resolution service or mediation service to resolve employment problems. Should mediation not resolve the dispute, the Employment Relations Authority or Employment Court can determine the issue.
Steps to resolve — Employment New Zealand
Enforcement
WorkSafe inspectors will take an education-first approach, they:
can help businesses understand what you must do to meet COVID-19 legislation requirements
can give businesses the chance to make changes and ‘do the right thing’, and
may take enforcement action if those changes aren’t made.
Our enforcement approach during the COVID-19 pandemic — WorkSafe
How do I apply the factors in the tool?
Environment factor
What is the definition of an internal area?
An internal area means an area within a workplace that, when all its doors, windows, and other closeable openings are closed, is completely or substantially enclosed by—
a ceiling, roof, or similar overhead surface; and
walls, sides, screens, or other similar surfaces; and
those closeable openings.
How do I calculate the size of an area I work in?
You can use a measuring device or pace out the space to get an estimate of how big it is.
Alternatively, you could ask the property owner of your business premises for relevant documentation to specify the size of your indoor space.
What if I work outside?
If you work outside then you will be at lower risk, ie you will get a ‘no’ answer.
If I meet with colleagues in smaller meeting rooms, does this count when assessing the environment factor?
Yes. When applying the tool, a business will need to consider all aspects of a person’s work.
Physical distancing factor
What is meant by being able to maintain physical distancing from other people?
In some workplaces it can be considered reasonable for workers to maintain physical distancing of 1 metre even if they do not always choose to do so. In this situation, the lower risk indicator would apply, ie the answer would be ‘no’.
In other workplaces, it may not be reasonable for workers to maintain physical distancing of 1 metre and workers may have no choice but to be in closer proximity (ie less than 1 metre) with other people from time to time. In this situation, the higher risk indicator would apply, ie the answer would be ‘yes’.
Time factor
What if I do come within close proximity of another person during the day but it’s for less than 15 minutes?
Under this factor, close proximity is defined as being within a metre of another person when carrying out work.
The indicator relates to contact with any one person continuously for 15 minutes, so if someone spent more than 15 minutes alongside someone else then they would meet the threshold. It is not cumulative for working in close proximity with a number of people over a day.
This factor applies each time you interact with another person.
Vulnerability factor
What does “vulnerable to COVID-19” mean?
In the tool the factor relating to people who are vulnerable to COVID-19 is defined as workers who provide services to people who are:
under the minimum age to be vaccinated;
exempt from being vaccinated under a COVID-19 order (for example being medically exempt from being vaccinated); or
at risk of severe illness from COVID-19.
The Unite Against COVID-19 website has a section that sets out who is at higher risk of severe illness if they contract COVID-19 and the definition of vulnerable people is based on this definition.
COVID-19 higher risk people — Ministry of Health
How do I know if people are vulnerable to COVID-19?
A business will need to determine whether any of their workers provide services to other people who the business considers are vulnerable to COVID-19.
A worker who provides a service in a public-facing job may be more likely to come into contact with people who are vulnerable to COVID-19. However, this needs to be assessed on a case-by-case basis.
This factor applies where there are in-person interactions with members of the public (not including your co-workers).
SOURCE: BUSINESS.GOVT.NZ
