Clarity re Unvaccinated Employees

25 November 2021

Employers now have the power, subject to conducting risk assessments and consultation with affected parties, to require that certain work may only be undertaken by fully vaccinated employees. Then we’ve got the requirement for CVC passes before people may enter certain premises and facilities, with all employees working in those premises required to be fully vaccinated. And today we’ve finally got approval for rapid antigen testing which is widely used overseas. These kits will also be available from 15 December for personal use, but only under the supervision of a pharmacy at this stage.

There are now three broad categories of employment in respect of vaccinations – those where workers perform specified work covered by a Health Order, those where a CVC pass system is in force, and the rest.

Specified Work

This category relates to work specified under a COVID-19 order, such as the COVID-19 Public Health Response (Vaccinations) Order 2021 applicable to workers in MIQ and border operations, health and disability services, education services and prisons. Key points for this group are:

A record must be kept of the vaccination status of affected workers.
Affected workers must not be permitted to carry out specified work unless they are vaccinated.
Affected workers must be notified that unless they are vaccinated, they must not carry out specified work.
Affected workers must not be prevented from being vaccinated during their normal working hours.
Affected workers have a duty to provide information on their vaccination status if requested.
If a document is provided, after inspection or copying, it must immediately be returned to the worker.
If a worker does not provide the above information they may be regarded as being unvaccinated.
Workers have an obligation to keep their vaccination status and record, up to date.

In this context ‘vaccinated’ means having all the required doses.

CVC Businesses and Facilities

This section applies to those premises or facilities where Vaccine Certificates are required for entry.

An authorised enforcement officer may direct a person to produce evidence of their vaccination status.
If a document is provided by a person, after inspection or copying it must immediately be returned to that person.

Other Employers

This group has a bit more work to do. However, employers in this group can mandate that certain work only be performed by vaccinated employees. Key points for this group are:

A risk assessment must be conducted to determine whether it is reasonable to prevent workers from carrying out certain work unless they are vaccinated (or provide a negative COVID test).
A simplified risk assessment tool will soon be available via Order-in-Council regulation.
Employers may use their own assessment tool which will still be valid.
There must be consultation with workers, and their representatives where applicable, about the proposed policy and the risk assessments.
Representatives must not have access to any personal information concerning a worker without their consent.
Despite anything in the Privacy Act 2020, personal information about the vaccination status of employees may be held for ascertaining their vaccination status or demonstrating compliance with an Order.
Employees are entitled to reasonable paid time off to get vaccinated.

Risk Assessment Tool

We have developed our own risk assessment tool, based on the WorkSafe criteria. It has 7-10 assessment criteria.

The Government’s promised simple risk assessment tool will not be available until after regulations have been passed. What we know so far is there will only be four criteria and if three are satisfied that will be decisive. Those criteria are:

work is done indoors, in a space smaller than 100m2.
work is done less than 1 metre apart from other people.
work is done in proximity to other people for more than 15 minutes.
work involves providing services to people who are vulnerable to COVID-19.

Termination of Employment

Unvaccinated employees may be terminated in certain circumstances:

An employee who is covered by the COVID-19 Public Health Response Act 2020, or an employee whose employer has determined they must be vaccinated to carry out their work must be given reasonable notice specifying the date by which they must be vaccinated in order to carry out their work.
If the employee remains unvaccinated (or fails to confirm they are vaccinated), all reasonable alternatives to termination should be explored.
If none are identified, the employee may be terminated on 4 weeks’ paid notice (or the amount of notice in their employment agreement if greater than 4 weeks).
The notice may be cancelled if the employee gets vaccinated during the notice period.
Employees may still bring a personal grievance but if the above procedures are followed the employer’s action should be found to be justified.

If you need further advice on this subject, give us a call – Tony 021 920 323, Justine 021 920 410 or Michelle 021 993 735