We appreciate that business owners and managers are faced with a difficult and continually evolving situation with Covid. There is often a divergence between customer expectations and the need for compliance with Health and Safety, Privacy and Employment legislation.
Success Group, providers for our HR Advisory Service, have provided guidance to some commonly asked questions below. Please note that this is general advice and should not be relied upon or taken to be legal advice for specific situations.
1: Can I require certain roles to be carried out by vaccinated workers? POTENTIALLY – do risk assessment now
Some roles are covered by government Orders, which make it mandatory for particular roles to only be carried out by vaccinated people. New Zealand can expect more industries to be covered by mandatory Orders in the future.
For all other employers, you should undertake health and safety risk assessments of particular roles now to determine:
- The likelihood of the employees/colleagues/members of the public being exposed to a risk, and how is the risk determined between a vaccinated worker and an unvaccinated worker while performing a role, and the potential consequences of that risk on others (e.g. community spread).
To decide that the work is high risk and therefore needs vaccination for health and safety reasons, businesses must first assess their Covid-19 exposure risk. This applies to work done by all workers, whether employees or independent contractors.
Businesses must involve workers, unions and other representatives in the risk assessment process, and when deciding how to eliminate/minimise risks. Businesses should consider whether other public health measures (eg physical distancing, PPE usage) can minimise the risk of exposure and transmission of Covid-19.
If certain work can only be done by vaccinated workers, businesses should set a reasonable timeframe for workers to decide if they will be vaccinated. If an employee cannot work during this time, special paid leave should be considered, especially in the short term while employers and employees discuss what happens next. Options that can be considered are finding alternative duties or locations for the employee.
If your health and safety risk assessment has determined that employees need to be vaccinated – employers or PCBUs are responsible for making sure your employees meet vaccination requirements, including preventing employees from carrying out certain tasks if they have not been vaccinated. Under a proposed government Order, workers may have to give their employer/PCBU certain information so that their employer/PCBU can meet its vaccination requirements.
Privacy, Human Rights and Health and Safety obligations will need to be balanced – so get legal advice first. Cases in this area are currently before the court.
2: Can I ask my staff if they are vaccinated?
Some businesses may be able to request staff for information on their vaccination status.
There may be religious or medical reasons why a person cannot be vaccinated. You cannot ask your worker to get vaccinated unless they need to be vaccinated to perform a specific role in your business for health and safety reasons or they are covered by a government Order.
You can ask employees if they have been vaccinated but they do not have to tell you if they have, or why they choose not to. You cannot discriminate against employees who choose not to get the vaccination.
If your employees choose to tell you about their vaccination status, you cannot share this information with anyone without their permission and you must comply with the Privacy Act principles in relation to collecting, storing and sharing this information.
3: Should we introduce a Vaccination/Pandemic Policy?
Most businesses should have a Vaccination/Pandemic Policy in place which covers:
- Health and safety obligations
- PPE requirements
- Mask requirements
- Sickness expectations
- Privacy Act compliance
- Customer expectations / behaviour
A Vaccination/Pandemic Policy and a robust Health and Safety Policy will go a long way to ensuring the employer is properly complying with the Health and Safety at Work Act 2015 and is communicating its expectations and rules properly with its workers.
Points to consider:
- If a high performing employee refuses to be vaccinated are you prepared to see them leave the business?
- If a highly valued contractor or client (or just a regular supplier) doesn’t agree with your Policy are you prepared to lose that working relationship?
- If the employer is introducing the Policy it is their responsibility to provide the information requested by the employee – not the responsibility of the employee to have to find it themselves.
4: Can I require new staff to be vaccinated?
You will need to assess whether the requirement for the role to be carried out by a fully vaccinated worker is justified, and then:
- Update Employment Agreements; and
- Ensure other recent changes to employment law (e.g. bereavement leave, sick leave, privacy laws) are also incorporated into the updated Employment Agreements at the same time.
You must ensure you understand your obligations around non-discrimination.
5: How can I support my employees to get vaccinated
A fully vaccinated workforce may help keep your workplace safe from Covid-19. You can help workers make an informed decision and encourage them and their whānau to get the Covid-19 vaccine by:
- allowing them time off to get the vaccine
- talking to them about their leave and pay entitlements if they need time off to go to their appointment or if they feel unwell after getting the vaccine
- respecting their privacy
- listening to their concerns.
Your workers may have questions about the vaccine. You can help them find out more by:
- directing them to official sources for accurate and up-to-date information, including:
- checking everyone can access the information if they need it.
6: Employees may pose the following situations, the Government to date have not provided an answer or guidelines for these (as at 14/1021)
- In circumstances where the Employee agrees to being vaccinated due to work requirements and they suffer an adverse effect, whether short, medium or long term, will this be recorded as a work-related accident and reported to WorkSafe (or other relevant authority), the Accident Compensation Corporation and/or any associated insurance policies.
- If the Employee requires further and necessary support to manage and cope with any adverse consequences will the Employer provide such support.
- If you provide support and paid time off for an Employee to get vaccinated what is their understanding if they then have an adverse effect; paid special leave, sick leave, LWOP?
- Which vaccine is recognised by the Company?
- Will a booster be required? What does support look like for each booster injection?
- Is the intent of a vaccine mandate to protect others who may come in contact with the worker?
- If someone with a medical exemption is not required to be vaccinated, yet still allowed in the workplace, why will an unvaccinated worker with similar PPE not be allowed in the same workplace?
- Can the demand for the vaccine be accompanied with all of the details that the employee might ask for? Efficacy, long term side effects, contents, adverse reactions, etc
- What if the Employee is able to provide proof that there is no evidence that the vaccine has no effect on the transmission of the virus, what are the public health measures that are to be considered?
The information contained in this newsletter is general advice and should not be relied upon or taken to be legal advice for specific situations. We strongly recommend you seek legal advice in order to understand the obligations of your business (including in relation to the roles within your business / the industry you are in / the risks your business may be facing).
We have also received questions from our members seeking clarity with regards to security staff being instructed to enforce wearing of face masks when entering premises, such as supermarkets.
Wearing Face Coverings/Exemption Cards
As well as meeting all Alert Level requirements, businesses must continue to comply with all other laws including the Health and Safety at Work Act 2015 (HSWA).
Whilst businesses are not required to ensure people wear face coverings, they may take steps to encourage it, including the use of Security Officers to screen access to their premises.
When considering these steps, businesses must think about how to keep their workers and contractors healthy and safe. This should include what to do if a person becomes angry at the worker who is encouraging people to wear a face covering.
It is also important that workers ensure that they do not discriminate against people with disabilities or health conditions that mean they are unable to wear a face covering safely or comfortably. Whilst these people can get an exemption card as evidence of their disability or health condition, government requirements state they are not required to carry the exemption card or to show it on request.
Our recommendation is that when providing Security Officers to screen access to premises, security providers should work with the customer to establish clear protocols for the Officers to follow. They should include awareness of the rights of those with disabilities or health issues, the available alternatives that can be presented to those who refuse to wear face coverings (such as click and collect or allocated shopping times) and an escalation process for Security staff to follow if customers become angry or aggressive (with a focus on ensuring safety of the officer, staff and other customers).
Please don’t hesitate to reach out to us if you have any questions or require assistance.
Stay safe and keep well.
The NZSA team.