Covid19 - Vaccinations Policy for Non-Mandated positions

Posted 27 October 2021 by Mike Johnson covid-19, vaccinations, policy, fair process, risk assessment;

Wednesday 27th October 2021

 

Can a customer require my staff be vaccinated? How does the traffic light system affect me and my business? What must I do if I believe my business needs everyone to be vaccinated?

These questions and many more are hitting my desk and the government are making decisions almost daily that impact on the answers.  I will do my best to give you a steer in this current environment:

Latest Government signals (as of 26 October 2021 at 4pm):

• Anyone being dismissed for not being vaccinated will need to be given at least 4 weeks’ notice (law to come)
  • This means that after you have completed a process to try and find an alternative role for a non-vaccinated (and non-exempt) employee, after a fair process, you will still have to pay them for 4 weeks – to give them a chance to reconsider and get vaccinated.
  • Any policy will need to allow for this
• Current Good Faith expectations in the employment relationship remain in place
  • This means you will still need to consult with staff over any policy and over any implementation of it that will affect anyone’s job or employment
    
    
• We can expect that any business where customers are required to be fully vaccinated, will be added to the mandatory list (businesses like gyms, hairdressers …) – law to come
  
  
• Vaccination Certificates can be expected from November (sometime)
  
  
• The government (with the CTU, Bus NZ and Worksafe) are developing a legal framework for conducting Risk Assessments which can result in a decision to require vaccinations for some roles in a business.
  • This means that any risk assessment undertaken now, may come under scrutiny later if it doesn’t fit – although the law is not yet in place. My understanding is that this means you will need to be very sure your process for risk assessment is fair and reasonable now.
    
    

What do Traffic Lights require?

As I understand it, the big picture here is that businesses will have to elect whether or not to require customers to show a vaccination certificate.  If you do, you will only be able to serve vaccinated customers and will have to have all your staff vaccinated, but you will be able to operate very similarly to current levels 1 and 2 (for a red light) irrespective of the traffic light.  If you wish to serve everyone, you will have to operate under restrictions (not dissimilar to current levels 2, 3 and 4).

MBIE cannot say if there will be any restrictions on moving between requiring certificates or not, so for the moment I advise you to assume you will be able to – except that it could take weeks to consult over staff being vaccinated.  If you do wish to move to requiring certificates and you have employees who are unvaccinated and not exempt, you will be forced to remove them from the workplace – either through leave of some sort or by termination of employment.

Traffic Lights will apply once we reach 90% vaccination levels for the country – maybe sometime in January?  So this may not be an immediate question – but definitely one that you should keep in mind.  If you may need to require vaccinations, you should have your policy and process in place.

What if I want my staff to be vaccinated?

The key here is process.  Unless you covered by the mandatory vaccination Order, to require your staff to be vaccinated (or even to ask them if they are) is a breach of their privacy.  So to do this requires you have good reason.  This is going to come from one of two sources:

1. You have conducted a Risk Assessment and vaccinations are a necessary control over a significant risk:
   1. At present I strongly suggest you should use expert advice from a H&S consultant if you are going to do this. I know that OHS, with whom we work, are able to provide assistance with process and documentation 
      https://www.ohsconsultants.nz/covid-19-risk-assessments
      
      
2. You have been told by a customer that they require your staff to be vaccinated if they are to enter their premises (where they are the PCBU)
   1. This could mean that it only affects a few positions, but it may have to be broader if your staff cannot maintain social distancing
   2. In theory they must have conducted a risk assessment to require such disclosure

The reality is that if you are required to be vaccinated by another PCBU, you will need to comply – to do so will mean:

1. Telling your employees affected by this requirement, that you have received the instruction, and advising them to be prepared to show they are vaccinated
   
   
2. Asking your employees to tell you if they will have a problem complying with this instruction
   
   
3. Potentially running a consultation process to introduce a policy to require vaccinations for staff serving customers like this.
   
   

What should I be doing now?

1. Encourage all staff to get vaccinated – for their own good and the good of those they interact with;
   
   
2. Encourage any employee who believes they should be exempt to start to obtain that exemption;
   
   
3. Identify whether you think you need to have all staff vaccinated. If you think you do, then contact us to provide suitable support for a process and policy; and
   
   
4. Otherwise, I recommend you continue to be aware of the changing environment and we’ll update you as things develop

 

Mike Leave – just a heads up – Mike is away on leave from 8-12 November.  Please try and ensure he gets plenty of notice of work needed to be done prior to these dates.

Essential HR are here to help.  For ongoing help call us on – 03 3650532, or you can contact Mike directly on 027 2808546 or mike@essentialhr.co.nz.

I’m happy for you to pass this on to others.

And if you need to conference call, we are all set up with Zoom.