FAQs answered by James Warren of Dentons Kensington Swan and organised by the CCNZ.
There is some continuing uncertainty as to what guidance or rules will be released by the Government as time goes on with respect to mandating vaccinations.
The ‘traffic light’ system does indicate that businesses running retail and hospitality spaces can require customers to be vaccinated. However, no clear statement has been issued about whether similar rules might apply to dealing with construction workers on a site. The below is current as at 26th October, but is subject to change.
How can I create a vaccination policy for my organisation?
The first step is to undertake a careful assessment of the Covid risks and the particular business issues and requirements for your organisation. This will help determine your initial stance on vaccination. You should bear in mind that you will need to consult with your employees before introducing any new policy on vaccination.
Guidance on how to conduct a risk assessment with respect to Covid vaccination has been released by WorkSafe. Employees should also have an opportunity to provide feedback on this risk assessment.
After determining the approach, you want to take, you can prepare a draft policy to consult upon with your employees. At a high level, the policy should include: the purpose of the policy; who it applies to; the company’s position on vacaination; why it has taken its approach (e.g. the findings of the risk assessment, customer requirements or the application of a Government requirement); how employees are to comply with the policy (i.e. provision of vaccination status or double vaccination if necessary); and how the organisation is intending on using the information it collects in compliance with the Privacy Act 2020.
Although such circumstances are likely to be rare, you need to take care not to discriminate against workers who cannot vaccinate for medical, political or religious reasons.
Generally, your policy should recognise the need to examine any individual concerns or issues on a case-by-case basis. There are useful policy building resources available that can be accessed online.
What are my obligations as an employer to minimise Covid risks to staff?
Under the Health and Safety at Work Act 2015 organisations must ensure (as far as practicable) the health and safety of their workers (and of any visitors or other people present in the workplace).
This includes monitoring the conditions of the workplace to prevent illness and requires effective measures to reduce the risk of contracting Covid at work. Depending on the results of a risk assessment done on the business, appropriate measures may include social distancing, PPE and/or vaccination.
I have a small company with less than 20 staff, should I mandate vaccinations, and what do I need to think about before I do that?
The health and safety requirements for small companies are the same as those that apply to large organisations. We suggest taking the approach outlined at the first FAQ.
However, an additional consideration for smaller companies may be the need to adjust operations to meet the requirements of larger players and clients, which may be unwilling to negotiate on vaccination requirements. Identifying the stance of your main business contacts will be important.
My main customer has told me I can’t access their site without being fully vaccinated Is this legal? What do I do?
This area is developing as the Government releases guidance on when a company can and can’t require vaccination of third parties.
However, if you have an existing agreement with your customer, you should check the contract terms on health and safety and whether they include any right for a requirement to vaccinate to be put in place. Even if there is no legal right, you may want to consider the wider commercial relationship and the impact of any refusal to cooperate.
Bear in mind that a legitimate customer requirement may justify introducing your own policy to mandate staff vaccination.
Is vaccination of workers likely to be necessary in the new year?
On current trends, it will become more and more common that organisations mandate vaccination. However, subject to any government decisions in this respect, requirements for workers to vaccinate will continue to depend on the health and safety risk for each workplace.
Are there going to be changes to legislation to accommodate this to prevent legal action being taken against my business?
This area is developing as the Government releases guidance (and health orders) that dictate when certain types of businesses can mandate vaccinate of both staff, visitors, and others. If there are Government orders then the risks will be much lower, but there will still be a need to consult with staff and follow a fair process if considering taking action against them for not vaccinating.
Generally, mandating vaccinations without legal justification could expose an organisation to claims. But they should also weigh the potential risks from Covid infection.
How can I support my team to get vaccinated? What tools are available to me to do this?
There are many ways to encourage workers to vaccinate. These include: General communication encouraging vaccination and providing accurate information on the protections it provides; incentives for those who vaccinate (examples could include paid time off to obtain the vaccination or generally for those already vaccinated, or bonuses); a policy mandating vaccination in appropriate circumstances.
There are also many online resources available, and a range of organisations dedicated to supporting vaccination initiatives.
What should I do if some of my teammates and/or staff either don’t want to vaccinate or says the can’t due to medical reasons?
Much will depend on whether you have legal justification for a requirement to vaccinate in place. Without it you should be careful not to do more than encourage staff to vaccinate.
It is important also to be aware of the public health guidance on the safety of vaccinations. There are very limited medical reasons that provide a legitimate basis for not vaccinating. However, it is also important to consider each staff member’s concerns or issues on a case-by-case basis, being sure not to discriminate on inappropriate grounds or to follow an unfair process. It may be best to seek professional advice before considering dismissal or other formal action against staff who refuse to vaccinate.
Is it safe to work with unvaccinated people?
Whether it is safe to work with unvaccinated people depends on the risk profile of the work you do and, on the health, and vaccination status of your staff and the people they interact with. Therefore, it is important to undertake a proper health and safety risk assessment.
It may be that social distancing or PPE requirements are sufficient to minimise the risks. However, in many circumstances, there will be good evidence that vaccination is the best way to minimise the risk of an individual contracting or spreading Covid.
How do I engage with my supply chain about this issue?
It may be beneficial to consult with your business and contractor stakeholders at the same time as you are engaging with your own staff on any new vaccination policy.
This will ensure that any of their concerns or issues are identified and taken into account, and that they can consult with their own staff.
You are unlikely to have any direct legal obligation to consult or to give them time to consult, but it will be appreciated as good business practice. It should also promote a cooperative and shared approach to managing Covid and dealing with vaccination issues, reducing the costs and risks for all.
Parting words from Jeremy Sole- a final column