The COVID-19 Public Health Response (Vaccination Assessment Tool) Regulations 2021 (Regulations) have been released and come into force today, 15 December 2021. The Regulations set out a vaccination assessment tool that can be used by PCBUs to determine whether it is reasonable to require workers of the PCBU not to carry out work unless they are vaccinated.
Many PCBUs have already implemented their own risk assessment process and they can continue to rely on them, provided they are robust and comprehensive.
We also note that the assessment tool does not override any legal obligations under the Employment Relations Act 2000 or the Health and Safety at Work Act 2015. Both WorkSafe and the Employment Court have placed considerable weight on an employer’s procedural and consultation obligations in making decisions which ultimately impact on the continuation of employees’ employment.
Assessment tool
As expected, the tool contains four criteria and if a PCBU answers yes for at least three of the four factors, it is reasonable for the PCBU to require a worker or a class of workers to be vaccinated to carry out the work.
The four factors to consider are:
- the environment in which a worker carries out work; and
- the proximity of a worker to other people; and
- the time in which a worker is in the proximity of other people; and
- whether the worker provides services to other people who are vulnerable to COVID-19.
We set out the four factors to consider in more detail in the table below.
| Factor | Yes – if | No – if |
| Environment factor
If a worker, during all or part of their time working, carries out work: |
In an internal area that is less than 100 square metres | Outside or in an internal area that is at least 100 square metres |
| Proximity factor
If a worker, during all or part of their time working, carries out work in circumstances in which being able to maintain physical distancing of 1 metre or more from other people: |
Is unreasonable | Is reasonable |
| Time factor
If a worker carries out work: |
For more than 15 continuous minutes at a distance less than 1 metre from the same individual | For 15 continuous minutes or less at a distance less than 1 metre from the same individual |
| Vulnerability factor
If a worker provides a service to other people whom the worker’s PCBU considers: |
To be vulnerable to COVID-19. This is defined as: (a) under the minimum age for being vaccinated; (b) exempt from being vaccinated under a COVID-19 order; and (c) at risk of severe illness from COVID-19. |
Not to be vulnerable to COVID-19 |
Discretionary considerations
The Regulations provide a PCBU can decide not to require a worker or a class of workers to be vaccinated to carry out work for the PCBU if:
- The PCBU considers that other COVID-19 safety protocols will eliminate or minimise the risk of exposure and transmission of COVID-19 in the workplace; or
- The PCBU considers that the outcome of the consultation process with workers provides that it is not necessary to implement a vaccination requirement; or
- Any other factors that the PCBU considers relevant.
We note that a PCBU needs to be open and receptive to the workers’ views and reasoning, even if the company does not accept them. However, a PCBU is only required to consider the feedback provided in the consultation process and is under no obligation to accept the feedback.
Conclusion
The vaccination assessment tool provides a useful tool for employers concerned about their legal obligations under the Health and Safety at Work Act 2015, but not covered by the vaccination order. However, the tool comes a little too late for many employers, who have already implemented their own robust risk assessments. Also, many had hoped for more guidance on the appropriate assessment tool than that set out in the Regulations, and in our view, the assessment tool does not accurately reflect the potential health and safety risks in corporate settings.
If you have any questions about how your business can use the vaccination assessment tool or any other risk assessment, please contact us.
