Mandating Vaccinations
October 2021
The lay of the land is now a lot different to what it was a month or two back when one of our trusted Topic Experts, John Dustow blogged about the legal parameters of employees and vaccinations.
Given the recent mandating of vaccinations for education and health workers, there are two aspects for employers to now consider:
Now that the Government is not following an elimination strategy and it appears cases are ramping up in Auckland, the risk assessment of whether it is reasonable to believe employees (especially in Auckland but now spreading through the country) have a reasonable risk of contracting Covid is different to what it was 3 months ago.
Although Employers may not have reached the point they can mandate vaccinations to their employees, there is nothing stopping companies from mandating any client or otherwise any person from coming onto their site without being vaccinated. Now ironically enough, this strategy actually could be one of the mitigations to protect your staff without having to go through the whole process of consultation etc with your own staff to get vaccinated… just make it mandatory for everyone else to get vaccinated thus keeping your staff safe. Iis situation, if a labour supply company for example, had all their clients say “No Vax, No Entry”, then they come to a situation where they will require their staff to be vaccinated – not under health & safety per se, but simply put, if you’re unvaccinated, we have no work for you as all our clients require vaccination. Because of that, if you’re unvaccinated, your role is redundant.
Section 34 of the Health & Safety at Work Act requires businesses to apply the 3 C’s – consult, cooperate and coordinate their activities when managing common / shared risks. Covid, is of course a shared risk, so, what communications do we need to have in place to satisfy this part?
As noted above, the business that has control and influence, as in a Client or perhaps a Main Contractor in a construction setting, can dictate how their site will run. With that in mind, it is more a case of aligning to their expectations – the alternative is we do not go to site.
As you can see, things have changed a bit where because of client requirements, an employer may have the right to require vaccination outside of the health & safety framework.
This does not mean we can terminate workers who do not want to get vaccinated. As part of any employment process, it has to be fair and consultative, and redeployment must be considered. The reality is, if you are a subcontractor and everyone you supply is requiring vaccinated people, there is unlikely a redeployable position. Now any process under this must still be done correctly i.e. the receptionist that doesn’t go to a clients site could not have their job affected by this.
Ultimately, we do need evidence to support our decision making. We believe it is advantageous to do a risk assessment from a health & safety perspective. This assessment in its simplest form should follow the same guidelines as any other risk assessment in a workplace. What is the risk, the risk rating, and what controls can we apply following the hierarchy of controls… starting with elimination. This framework should be standard in most businesses now.
The risk assessment would need to support that there is a reasonable risk in the workplace and under the specific circumstances in that workplace, vaccination is a reasonable mitigating option. Please note that the NZ Bill of Rights Act, Sec 11, which covers the right to refuse to undergo medical treatment, is a reasonably high bar to reach, but it is getting lower by the day.
Finally, a risk assessment due to its subjective nature, can be completed in a way where it supports a predetermined outcome. This is not something we recommend for ethical, operational and legal reasons.
In summary:
If a client dictates that vaccinated people only are allowed into a workplace, this will make things easier for us as a client controls their workspace.
Any decisions we do make regarding our employees need to be done in good faith supported by evidence.
We still must follow a due process should we get to a stage where we drive redeployment and or redundancies.
Use your existing health & safety risk assessment to help with determining the risk to your business.