If your business or workplace isn’t covered by a government mandate for COVID-19 vaccination, you can choose to do a risk assessment to see if you can require work to be carried out by vaccinated workers, on health and safety grounds.
To do this, your business can either:
It’s up to you to decide what tool you use – businesses have sole discretion to make this decision.
Vaccines are an excellent tool to reduce the risk of COVID-19, but this doesn’t replace all other controls businesses should consider.
Even where a business has implemented a worker vaccination requirement, they will still need to consider whether any further measures should be implemented to minimise the risk of COVID-19 at work including complying with other Government requirements.
Our enforcement approach during the COVID-19 pandemic(external link) — WorkSafe
If you had already done a health and safety risk assessment before the vaccination assessment tool was introduced, you don’t need to do a new assessment.
|Factor||Lower risk||Higher risk|
|Does the worker work in an indoor space that is less than 100m2?||No||Yes|
|Is it unreasonable for the worker to maintain 1 metre physical distancing from other people?||No||Yes|
|Is the worker in close proximity to any other person for more than 15 minutes?||No||Yes|
|Does the worker provide services to people who are vulnerable to COVID-19?||No||Yes|
The vaccination assessment tool consists of four factors. You will need to answer ‘yes’ to at least three factors before it would be reasonable to require vaccination for workers who carry out that work.
When applying the tool to a particular role or job, you need to think about all of the tasks involved in that role, including those that aren't performed on a daily basis.
If a worker doesn’t want to be vaccinated, but the tool indicates it is reasonable to require vaccination for their work, or part of their role, then you must comply with your employment law obligations, eg act in good faith and consider any reasonable alternative employment arrangements or redeployment, or other measures that may minimise risk.
The tool can be applied to anyone who would be considered a ‘worker’ under the Health and Safety at Work Act which would include a contractor and any volunteer who is considered to be a ‘volunteer worker’ under that Act.
You need to consult with your workers and their representatives when applying the tool and also about any other appropriate alternative COVID-19 control measures.
You might find that consultation with workers highlights other measures that could minimise risk, or alternative working arrangements, that mean the higher risk factors in the tool may no longer be met, ie that a ‘yes’ answer becomes a ‘no’ answer.
Even if you decide not to use the vaccination assessment tool and use an alternative health and safety risk assessment, you’ll need to consult with workers, under the Health and Safety at Work Act.
You can exempt any workers from a vaccination requirement you introduce if you think you are still able to appropriately manage the health and safety of workers and others. For example, if you have workers who can’t be vaccinated for medical reasons you might exempt them.
When you use the tool, you’ll get an outcome, telling you if work should be carried out by a vaccinated worker or not. You don’t have to implement the tool’s outcome, but if you decide not to, you have to be prepared to justify your decision.
You must consider the following in the situation where the tool has provided a ‘yes’ outcome, but you do not want to require vaccination:
If your work does not meet at least three ’yes’ factors and you decide not to require vaccination, you should still consider whether any measures should be implemented to minimise the risk of COVID-19 at work. You will also need to comply with other Government requirements.
Even if your health and safety risk assessment finds that vaccination isn’t required on health and safety grounds, you might deal with another business or third-party that makes vaccination a condition of doing business with them, or accessing their premises.
You are entitled to make business decisions and to structure your business to meet your clients’ requirements. It would therefore be lawful for you to require that workers assigned to work with particular clients must be vaccinated, where the client has made this a condition of continued engagement. That doesn’t necessarily mean that all workers within your business need to be vaccinated, only those who have to engage directly with clients who have imposed this condition.
You may need to reorganise your workforce so you can meet specific client requirements, ie unvaccinated workers would work with clients who have not required vaccination.
If this isn’t possible, you may need to carry out a workplace change process, which could lead to redundancies.
Overview of workplace change(external link) — Employment New Zealand
Businesses must engage with workers and their representatives when applying the vaccination assessment tool.
Given how clear and specific the factors in the vaccination assessment tool are, businesses who apply the tool in accordance with the regulations should have confidence that their decision is justifiable.
Usual employment law and processes continue to apply. Employers should take care to be fair and reasonable in their employment decisions and work in good faith with employees and unions before deciding on any employment outcomes.
Employees will be able to bring a personal grievance if they feel they have been unjustifiably dismissed or disadvantaged as a result of a decision their employer has made about vaccination.
Employers and employees can access support from MBIE’s employment early resolution service or mediation service to resolve employment problems. Should mediation not resolve the dispute, the Employment Relations Authority or Employment Court can determine the issue.
Steps to resolve(external link) — Employment New Zealand
WorkSafe inspectors will take an education-first approach, they:
An internal area means an area within a workplace that, when all its doors, windows, and other closeable openings are closed, is completely or substantially enclosed by—
If you work outside then you will be at lower risk, ie you will get a ‘no’ answer.
Yes. When applying the tool, a business will need to consider all aspects of a person’s work.
In the tool the factor relating to people who are vulnerable to COVID-19 is defined as workers who provide services to people who are:
The Unite Against COVID-19 website has a section that sets out who is at higher risk of severe illness if they contract COVID-19 and the definition of vulnerable people is based on this definition.
COVID-19 higher risk people(external link) — Ministry of Health