It is a very controversial topic of conversation right now. Covid vaccination is a polarising discussion in our community and a potential issue for many businesses. Businesses will be facing many tough decisions in the coming days including who can attend a business premises; what evidence of vaccination can be requested from visitors; does a business need to advertise its staff vaccination status; do staff need to be vaccinated; and can an employer require staff to be vaccinated to attend work.
Over the coming weeks, some of those questions will hopefully be addressed by new rules to be announced. There are plans for a vaccination “passport” which will likely be needed for attendance at specified activities and events. Details of what events and workplaces will be impacted by the passport are still to be determined. However, we do know that the government has already mandated vaccinations for those employees in high-risk roles including the health and education sectors.
Employers within the health, education and other high-risk industries will need to establish that their employees have been vaccinated by the specified deadlines. If an employee has not been vaccinated then employers will need to address that with each specific employee. We are still waiting on specifics of the mandate from the Government however it is entirely possible that non-compliant employees without an exemption may lose their employment. From earlier cases involving port workers, the Court is likely to uphold this position.
For those businesses outside of the high-risk industries, the decision around staff vaccination will rest with the individual employer. What is clear is that each employer will need to undertake a health and safety assessment specific to their business. Worksafe (www.worksafe.govt.nz) has some very useful material on how to assess whether your workplace needs vaccinated employees. There is a list of questions that employers should ask themselves including how many people staff come into contact with; how easy is it to identify those people; what is the proximity of staff to others; how long is close proximity required; does the work involve regular interaction with others; and what is the risk of transmission at work vs the outside world.
The employer having asked those questions will then need to consider what other steps could be taken to mitigate the risk of infection. Those steps could include staff working from home or greater health precautions such as social distancing staff, sanitising, mask-wearing, etc. After those steps have been considered an employer needs to then assess the risk to staff of not being vaccinated.
If an employer finds that there is not a high risk of exposure or that any risk can be sufficiently mitigated then an employer is unlikely to need to ask staff to be vaccinated. Likewise, other staff cannot refuse to work with unvaccinated team members if there is low risk. However, if there is a high risk then employers are within their rights to require staff to become vaccinated to carry out their roles. If an employee feels that they are in a high-risk environment and being exposed to a hazard then they may refuse to attend the premises. This is where an assessment is a useful tool in discussions with those employees.
An employer is entitled to ask employees if they have been vaccinated. However, if staff do not wish to answer that query or provide evidence of vaccination then an employer can treat those staff members as being unvaccinated for the risk assessment. It is worth noting that employers do have an obligation to make time for their employees to go and get vaccinated in work time.
Businesses will also need to consider in this new environment whether to advertise to customers that their staff are vaccinated. We anticipate that this will increasingly be a common question of business, particularly where employees have to enter people’s homes. Consumers are likely in future to look for businesses who openly advertise that their staff are vaccinated. It will be up to individual businesses as to whether they advertise this fact.
This is an ever-evolving situation. This blog is a snapshot of the landscape right now. However, all businesses need to keep up with the changing requirements around vaccinations and other Covid business requirements.
For us here at Beach Law we are happy to say that all of our team are fully vaccinated and during Level 2 we are adhering to requirements for scheduled appointments, signing in, sanitising and mask-wearing.