The COVID-19 Series: Chapter Two

Chapter Two: Vaccinations for non- ‘Regulated’ Businesses

In our previous blog (read here) we outlined how to navigate the new COVID-19 Traffic Light Framework if you are a regulated business. Regulated businesses are:

• Food and beverage businesses and services,
• Close proximity businesses and services (like hairdressers), and
• Gyms.

If your business falls outside those categories, you still need to consider your primary obligations under the Health and Safety at Work Act 2015 (“H&S Act”). The H&S Act requires employers to eliminate risks to health and safety or if that is not reasonably practicable to minimise those risks. This obligation applies in the COVID-19 setting and may require that your employees need to be vaccinated to minimise risk to your work force and others they come into contact with.

To assess whether or not that is the case, you will need to undertake a COVID-19 risk assessment.

COVID-19 Risk Assessment

The Government released a tool to assist businesses in conducting COVID-19 risk assessments. These assessments need to be undertaken in collaboration with your employees.

This tool must be applied to anyone who could be considered a “worker” under the H&S Act and includes contractors and any volunteer who is considered a “volunteer worker” under that Act.

You are assessing the role, not the employee. It is not a performance review and should not be treated as one.

Here is the tool:

If you have circled “yes” to at least three of the four factors above, then it is highly likely that the work should only be carried out by a vaccinated worker.

We have broken these factors down for you.

Factor One: Does the worker work in an indoor space that is less than 100m2?

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.

Handy tips:

• You could measure the space by using a measuring tape or by pacing it out.
• You must take into consideration any smaller spaces that people may gather in – for example a lunchroom, supply closet, or smaller meeting rooms.
• A reasonable estimate will be sufficient.
• You can also ask the property owner of your business premises as they should hold this information.
• If you work outside, then you are at a lower risk.

Factor Two: Is it unreasonable for the worker to maintain 1 metre physical distancing from other people?

Have a think about whether it is reasonable or practical to ask your employees to maintain strict 1 metre physical distancing from other people. Ask these questions:

• Is there enough space to maintain the required distance?
• Are there any places that can’t be occupied without getting closer than 1 metre?
• What are the duties of the role? Is there any duty that would require them to get closer to people?

An example of the last question would be if a role required a current first aid certificate. That suggests that in an emergency the role would be required to administer first aid. That duty – however rare it may occur in practice – would require that worker to get closer than 1 metre to another person and points to a higher risk.

Factor Three: Is the worker in close proximity to any other person for more than 15 minutes?

• “Close proximity” is within 1 metre.
• You measure the amount of time consecutively, not accumulatively. In practice this would mean:
  Lower Risk: Worker A spends a total of 15 minutes closer than 1 metre to another person during the course of one shift. The time is accumulated over three different interactions, each taking 5 minutes of time, throughout the day.
  Higher Risk: Worker B spends a total of 15 minutes closer than 1 metre to another person during the course of one shift. It occurs in one 15-minute block, not split up over the day.
• The ‘timer’ applies each time the worker interacts with a new person.

Factor Four: Does the worker provide services to people who are vulnerable to COVID-19?

People who are vulnerable to COVID-19 are:

• Under the minimum age to be vaccinated;
• Exempt from being vaccinated under a COVID-19 order (such as being medically exempt); or
• At risk of severe illness from COVID-19.

Those at risk from severe illness can be found here.

A public-facing role may be more likely to come into contact with vulnerable people – like a receptionist. However, this should be considered on a case-by-case basis.

You are welcome to use our handy template:

Example One: A cleaner of an office business, that only works on weekends and works alone.

Here we have concluded that factor one is a high risk, but factors two, three and four are low risk. The outcome is therefore low risk and this role probably doesn’t need a vaccinated person to undertake the work.

Example Two: receptionist of an office business.

Here we have concluded that factors one, three and four are high risk, but factor two is low risk. The outcome is therefore high risk, and it would be reasonable to have this role performed only by a vaccinated worker.

We have also identified the supply closet as a potential issue – but have decided it is low risk. What this employer should consider is explicitly limiting access to the supply closet to one person at a time as an extra precaution.

Collaboration

You must consult with your workers and their representatives when you are applying this tool. How you do this will depend on the size and nature of your business. Asking for feedback over email and allowing for a two-week period for people to respond may suit an office set-up. A workplace-wide meeting may suit you better if you don’t traditionally work with computers.

During the consultation you should ask your employees to consider what they think the risks are, and what might be the best way to mitigate those risks.

Remind your employees that they are reviewing the risk of the role and the work undertaken by that role. They are not reviewing themselves or their own performance.

Outcome

After using the tool and consulting with your employees, the result will guide you in deciding whether the role should be carried out by a vaccinated worker or not.

You are not required to implement the tool’s outcome, but if you decide not to do so you will need to justify your decision. You should consider:

• 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.

If you do decide some or all of your roles require the employee to be vaccinated and you have staff who are vaccine hesitant then you must follow the process set out in the COVID-19 Public Health Response (Vaccination) Order 2021.

That Order requires you to consult with employees, to provide a reasonable period time for them to make a final decision, to give paid time off to get vaccinated and to exhaust all other reasonable alternates to termination Should termination be the only option and you have employees still refusing to be vaccinated the Order also sets out the process for bring the employment agreement to an end.

It is critical that you follow the correct process. The Employment Relations Act 2000 still applies, and your employees will have a right to raise a ‘personal grievance’ if you do not.

This blog offers high-level guidance only. It is difficult to generalise this advice any further as every business has different needs and employment structures. Many factors can complicate matters. For example, if employees are on long-term sickness leave, ACC, or on maternity leave, or are applying for an exemption.

Our experienced employment team guided many local businesses down this road from start to finish. If you are unsure about how COVID-19 may impact your legal obligations under the H & S Act, are dealing with vaccine hesitant employees or want to change your existing employment contracts don’t hesitate to contact us on 04-970-3600 or email info@wakefieldslaw.com. Let us do the mahi so you can get on with what you do best.