In our update on 25 November 2021, we outlined some key issues for employers arising from the COVID-19 Response (Vaccinations) Legislation Act. This legislation set out the broad steps an employer was required to follow to implement a mandatory vaccination requirement, and consequential employment obligations.
Regulations have now been made prescribing the Vaccination Assessment Tool that employers can use to determine whether or not it is reasonable to require their employees to be vaccinated to perform their work.
What is made clear in the Regulations is that an employer can chose to use the Assessment Tool, or perform its own risk assessment.
The Assessment Tool appears to be a basic checklist exercise – three checks out of four, and it is reasonable to require employees to be vaccinated. The factors are:
- If the size of the workplace is less than 100 square metres, it is a yes.
- If it is unreasonable for an employee to maintain physical distancing of 1 metre or more from others during all or part of their work time, it is a yes.
- If the employee carries out work for more than 15 continuous minutes at a distance of less than 1 metre from the same individual, it is a yes; and
- If the employee provides a service to people “vulnerable” to COVID-19, the answer is yes. “Vulnerable” in this context means minors, those exempt from being vaccinated, and those who are at risk of serious illness from COVID-19. We think this latter category is intended to include those who are unvaccinated, as those people are more at risk of serious illness as a result.
This simplicity is likely to be helpful for small businesses, but oversimplification may actually be unhelpful for larger businesses. But, again, employers can do their own risk assessments.
It is important to note that the obligation to consult with employees still applies to this simplified Assessment Tool.