14/12/2021
🛠VACCINATION ASSESSMENT TOOL ⚒
You know me: I'm more interested in reading straight from the source, than looking at any third-party website.
I've posted a link to the latest Regulations at the end of this post. This piece of legislation is fairly easy to follow. However, the key points are:
âž–The Vaccination Assessment Tool does not REQUIRE employers to impose or adopt vaccine policies. It is just a Tool.
âž–The Tool should be used to assess whether work must be carried out by a worker who is vaccinated, or a class of workers who are vaccinated. This does not allow for a business-wide application: each class of workers must be considered separately.
âž–There are four factors to be considered: environment, proximity, time and vulnerability. This Tool suggests that if any three are met, then it is "reasonable" for an employer to impose a vaccine policy. WARNING: The word "reasonable" has been used to purposefully provide the employer with a legal defense. In employment law, we must establish that the employer's actions were unfair or unreasonable: however, that will be difficult if what is "reasonable" has been legislated.
âž– HOWEVER, the employer must consider discretionary factors before requiring a worker or class of workers to be vaccinated. What other measures are available to eliminate or minimise the risk or exposure and transmission of COVIDd-19 in the workplace?
âž–There is no other requirement past consideration. However, it does appear to mean that if an employer has considered alternative measures, and have decided not to impose a vaccination policy, then that would similarly be reasonable.
âž–The employer is still required to conduct a work assessment, in accordance with section 33AB of the Health and Safety at Work Act 2015 (See: https://www.legislation.govt.nz/act/public/2020/0012/latest/LMS606357.html )
👀 MY VIEW 👀
This Tool gives employers the right to impose vaccine policies, will undermine an employee's ability to raise a personal grievance. There is no requirement for an employer to apply the discretionary considerations: which makes them useless against an employer who is determined to impose a vaccination policy.
In my view, the Regulations would have been better to have stated: "If a PCBU ascertains that the answer is yes for at least 3 of the four factors specified, and has provided consideration to the discretionary factors, it is reasonable for the PCBU to require a worker or class of workers to be vaccinated."
On the other hand, for employers, this tool retains your right to adopt health and safety policies as they are required in your workplace. If you are not a regulated business or service (under the Protections Framework), and your employees are not those under the Vaccinations Order, you may consider alternative measures for complying with your health and safety obligations.
Read more: https://www.legislation.govt.nz/regulation/public/2021/0418/latest/whole.html
