How to decide what work requires a vaccinated employee and WorkSafe’s enforcement approach

This guidance focuses on how to decide what work requires a vaccinated employee. WorkSafe refers to employees rather than workers because it affects employment arrangements. The guidance may also be useful for contracting or volunteer arrangements.

On 26 October 2021 the Government announced that a new risk assessment process will be introduced under public health legislation later this year. This guidance helps employers make a risk assessment under HSWA in the interim and provides WorkSafe’s interim enforcement approach. 

Work that requires a vaccinated employee

Certain work may only be carried out by vaccinated workers. The COVID-19 Public Health Response (Vaccinations) Order 2021 specifies who those workers are. This is a public health requirement.

Employers can also require other work to be done by a vaccinated employee, if a risk assessment identifies this is necessary for work health and safety purposes. That may be the case where the nature of the work itself raises the risk of COVID-19 infection and transmission above the risk faced outside work.

This is likely to have employment implications and you should follow Employment New Zealand guidance.

Your focus in the risk assessment must be on the role – the work being done – rather than the individual performing the role. If you want your employees to be vaccinated for reasons other than work health and safety that is an employment matter.

WorkSafe NZ enforcement approach to this HSWA risk assessment 

WorkSafe recognise that: 

  • Most businesses and services do not have infection control expertise and rely on direction and advice from public health experts 
  • The pace of change in the COVID-19 pandemic is unprecedented when compared with typical risks to work health and safety, and
  • For these reasons, it will not always be easy for businesses and services to ‘get things right’. 

Therefore, WorkSafe expectation is that to decide whether work requires a vaccinated employee: 

  • You carry out an adequate risk assessment, and
  • Engage effectively with workers and their representatives.  

Where a business or service can demonstrate it has done this, WorkSafe will not take prosecution action if they disagree with the decisions you made in your risk assessment. (This only applies to enforcement action within WorkSafe’s responsibilities.) WorkSafe will instead take an education-first approach, so you understand what is reasonable to require in your circumstances and have the opportunity to act on it.  

Completing the risk assessment 

Your focus in the risk assessment must be on the role – the work being done – rather than the individual performing the role. If you want your employees to be vaccinated for reasons other than work health and safety that is an employment matter. 

When completing the risk assessment, you:

WorkSafe have developed some questions to help you complete the risk assessment. There are likely to be other questions specific to your work that you should also ask.  Discuss these questions with your employees. Think about what the work tasks look like for a typical day or week. Identify the risk rating indicated alongside each risk factor. Where a situation is not black and white, a judgement call will need to be made. Advice from a health and safety professional may help you do that.

  1. Consider these risk factors
    • How many people does the employee carrying out that work come into contact with? (very few = lower risk; many = higher risk)
    • How easy will it be to identify the people who the employee comes into contact with? (easy to identify, such as co-workers = lower risk; difficult to identify, such as unknown members of public = higher risk)
    • How close is the employee carrying out the tasks in proximity to other people? (2 metres or more in an outdoor space = lower risk; close physical contact in an indoor environment = higher risk)
    • How long does the work require the employee to be in that proximity to other people? (brief contact = lower risk; lengthy contact = higher risk)
    • Does the work involve regular interaction with people considered at higher risk of severe illness from COVID-19, such as people with underlying health conditions? (little to none = lower risk; whole time = higher risk)
    • What is the risk of COVID-19 infection and transmission in the work environment when compared to the risk outside work? (equal to outside work = lower risk; higher than outside work = higher risk)
    • Will the work continue to involve regular interaction with unknown people if the region is at a higher alert level? (no = lower risk; yes = higher risk).
    • Record your results
  2. Consider other controls. Identify any further infectious disease controls you and your employees could put in place to reduce the risk. The Ministry of Health has detailed information about how to prevent the spread of COVID-19 at work.
  3. Assess the results of your risk factor discussion and the impact of any extra controls you will implement.

If your risk ratings tend toward higher risk and you are not able to reduce that risk by implementing more controls, you and your employees should consider whether the work should be performed by a vaccinated employee.

If your risk assessment is clear that the risk of COVID-19 infection and transmission through a particular work task is no higher than outside work, you may decide not to require the role to be performed by a vaccinated employee – but you can still act. Making it as easy as possible for your employees to get vaccinated is a great way to support New Zealand’s fight against COVID-19.

Further information

The Ministry of Health has information about COVID-19 vaccines and public health information for businesses and services. Unite Against COVID-19 has general information for businesses and services

Published by WorkSafe NZ – 3 November 2021