While we have known for a while that the government was expanding the scope of the vaccination requirements, many schools and health providers have been waiting with bated breath for the actual Order to be released. The catchily-named Covid-19 Public Health Response (Vaccinations) Amendment Order (No 3) 2021 (the new Order) has now been issued, and came into force at 11.59pm 25 October 2021.
In summary, the new Order requires those working in an ‘affected education service’, a prison, or a ‘health service’ to be vaccinated by a certain date. Workers who are not vaccinated will not be allowed to carry out this work (unless they have an exemption).
In no particular order, a few things to note:
The scope of ‘affected person’ in the health sector
Under the new Order, ‘affected persons’ in relation to the health and disability sector, will include health practitioners and “care and support workers”, but also:
- “workers who carry out work where health services are provided to members of the public by 1 or more health practitioners and whose role involves being within 2 metres or less of a health practitioner or a member of the public for a period of 15 minutes or more” and
- “workers who are employed or engaged by certified providers and carry out work at the premises at which health care services are provided”.
These later two categories will likely capture many people who are providing support services at a healthcare facility – including those who are employed by the entity (e.g. an accountant or HR practitioner) and those that may be employed or engaged by a different entity – for example, an electrical contractor carrying out a job in a hospital – depending on when and how the work is done.
The scope of ‘affected person’ in education
Similarly, in relation to the education sector, the new Order covers anyone (over 12) who carries out work (paid or unpaid) at, or for, an education service, if they:
- May have contact with children or students while carrying out that work; or
- Will be present at the education service at the time when children or students are also present.
This will likely cover those employed by, say a school or ECE provider, but may also cover a service technician repairing the photocopier during school hours, or a delivery person delivering food to the tuck shop.
The new Order also provides that for a home-based ECE, every person in the house (over the age of 12) must be vaccinated.
PCBUs need to keep a record
A Person Conducting a Business or Undertaking needs to keep a record of every person affected by the new Order. In summary, this needs to include their name, date of birth, contact details, their vaccination status (including which vaccine they have received and when) and any exemptions.
There is a corresponding duty placed on affected persons (employees or workers) to provide the PCBU with information or access to it, as soon as practicable, and to ensure that it is updated if the information changes.
The dates for the three groups are specific. In summary:
- Those working in the health and disability sector must have had their first vaccination by 15 November 2021 and their second by 1 January 2022.
- For prisons, the first dose must be received by 6 November 2021 and the second by 8 December 2021.
- For the education sector, workers must have received their first vaccination by 15 November 2021 and their second by 1 January 2022.
Businesses need to consider whether they employ or engage employees, contractors, volunteers or other people whose work is potentially covered by the new Order.
If so, the first step is to talk to that person about why the PCBU thinks that their work may be covered. The person may have additional information to provide that puts them in or out of the coverage.
Following consultation, if the PCBU considers that the work is covered, the requirement to keep a record (and the corresponding obligation on the person to provide information) will engage.
The PCBU has a duty under the Public Health Order not to allow a person to carry out affected work unless satisfied that they are vaccinated, by the relevant dates. If the PCBU is not satisfied, it will need to consider its next steps, and consult with the person about this.
Can this duty or work be reassigned to someone else? Will this require a change to the employment agreement or contract? Can the work be performed in a different way or at a different location? Does the whole role involve this type of work, or only some of it? Can the role be varied (by agreement) so that the PCBU complies with the Public Health Order? Are there redeployment options? Can termination be justified?
We know that the Employment Relations Authority has held that the termination of employment was justified where a border work role was covered by a Public Health Order and the worker had not been vaccinated. However, we also know that this is not going to be an ‘automatic’ outcome. The normal employment law rules around process and justification, including consideration of alternatives to termination, still apply, and must be carefully followed.
If you have any questions about your specific situation, please get in touch with our Employment Law Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.