Businesses faced with a raft of potentially contradictory legislation around employees, customers and the Covid jab are pleading with the Government for help.

Keith Johnson runs a small Auckland painting and decorating business with nine staff. The job is potentially hazardous – working at height, dust, lead in old paint.

Since the Health and Safety at Work Act came into effect in April 2016, Johnson is a PCBU, a person conducting a business or undertaking. As a PCBU under the act, he has “as far as reasonably practicable” to make sure his workers and his customers are safe.

That’s fine, Johnson says. There are rules to guide him around, for example, scaffolding, masks, and training. 

But when it comes to Covid and his legal responsibilities, particularly with vaccinations, Johnson feels the Government has left him on his own. Or rather he and hundreds of thousands of other business owners have been left on their own. 

The trouble, he says, is with Covid and vaccines it isn’t just around the Health and Safety at Work Act where he could end up on the wrong side of the law. There are all sorts of other bits of potentially contradictory legislation which come into play, including privacy, human rights, consumer legislation, even medical consent.

Johnson wants to do the right thing, and that is (in theory) to send vaccinated workers onto jobs where everyone they meet on site is also vaccinated. 

Social distancing is often not an option on a building site. Phot: Lynn Grieveson

But these other legal constraints mean getting vaccinated workers onto vaccinated sites is a legal minefield, which means meeting his obligations as a PCBU is way more complicated than normal.

See Newsroom’s previous article: Five prickly questions: the legal minefield around work and vaccines.

The staunchly unvaccinated

Johnson has one staff member who doesn’t want the vaccine. That’s around 10 percent of staff. The boss of another SME that Newsroom spoke to said of his 30 staff there were “five firm nos and one who won’t get it unless it’s mandatory”. That’s 20 percent.

A third construction-related company, also with 30 staff, has one person definitely not getting the jab and three or four still doing their homework. So potentially somewhere between 3 percent and 16 percent will end up unvaccinated.

All three of these companies are customer-facing. Johnson’s painters might work on half a dozen jobs in a week. They go into people’s homes, where there might be vulnerable people living, they have regular discussions with clients who might potentially have Covid.

“Nobody knows what they legally can and can’t do. Everyone’s got a different opinion.”
– Keith Johnson

Johnson does a lot of DHB work – clinics, hospitals, waiting rooms. Even with the high-level N95/P2 masks Johnson asks all his staff to wear these days, he wouldn’t send an unvaccinated person on those jobs. 

On one hand, SME owners like Johnson are faced with customers and co-workers wanting only to deal with or be around vaccinated people. On the other hand there is the staunchly unvaccinated minority. In the middle are laws that potentially punish businesses if they don’t keep their workers safe, yet potentially make it illegal to mandate vaccinations, or even force a staff member to tell you if they’ve had a jab.

It’s not clear what constitutes a high-risk or a low-risk role. Photo: Lynn Grieveson

Johnson says it’s a potential minefield, and he wants the Government to help him work out what he should do. But so far there’s precious little guidance to be had.

“Nobody knows what they legally can and can’t do,” Johnson says. “Everyone’s got a different opinion. It feels like the Government doesn’t want anything to do with it. They are waiting for someone to go to court to get some clarity.”

DIY risk assessment

One of the biggest grey areas is around so-called ‘risk assessments’ that businesses can carry out if they are worried about a particular Covid risk in a particular work situation. There are two factors to consider, WorkSafe says: the risk of a person in a particular role getting Covid, and the risk bad things could happen if they pass the virus on. 

If there’s a “high likelihood both that the person performing the role may be exposed to Covid and the consequences would be significant for other people, it’s likely the role needs to be performed by a vaccinated person,” the WorkSafe website says.

“If you decide the role needs to be performed by a vaccinated person, you’ll need to work through the employment implications.” 

WorkSafe says the majority of roles will fall into the ‘can’t mandate vaccination’ category. 

And that’s it. End of guidance.

It’s like the Government has told business owners there is a line in the sand. If the risk is low, no vaccination needed. But if the risk is high, a vaccination is required. 

But businesses need to work out for themselves where that line is and on which side of the line a particular role falls. 

There’s no application form to fill in to check if you should mandate the vaccine in your business, no scorecard, or official to ask “this is my situation, what should I do”?

Competing legislation

Weighing against a company’s decision to mandate vaccinations are a number of pieces of potentially conflicting legislation – in particular the Privacy Act, the Bill of Rights, the Human Rights Act, and the Employment Relations Act. 

The Bill of Rights is the starting point, and it’s crystal clear. “​​Everyone has the right to refuse to undergo any medical treatment.” Including a Covid vaccination. So then companies have to decide how to deal with staff who make that legal choice not to get the jab.

In certain situations, notably people working in MIQ and certain border roles, Government has made a decision. No jab, no job.

But mostly they haven’t. And there are other minefields, like the Privacy Act.

Take an example. What if an SME business owner believes a particular role is high risk and therefore should be performed by a vaccinated worker. On the face of it, the action of asking for someone’s vaccination status breaches the Privacy Act, as it is requesting their health information, says Duncan Cotterill partner and employment law specialist Olivia Lund. 

A company would be justified asking that question only if the role was judged high risk. But what if the company decided that was the case, but WorkSafe or the courts later decided it was wrong?

“Nothing is hard and fast. It would be helpful if Government gave more clarity.”
– Olivia Lund

Similarly dismissing a worker for not being vaccinated, or not hiring someone for the same reason, could potentially be seen as discrimination under the Human Rights Act, if that person refused the jab because of ethical or religious beliefs, due to a disability, or even because of political beliefs.  

Again, that breach might, or might not, be mitigated by a health and safety risk argument, Lund says.

“Nothing is hard and fast. It would be helpful if Government gave more clarity.”

Olivia Lund says businesses just want to know what to do. Photo: Supplied

In particular, it would be good to know what particular activities or types of workers officials regard as high or low risk. 

“At the moment, the Government is leaving it up to business to determine, but it’s grey and not everyone can do that. Even lawyers struggle.

“People are frustrated,” she says. “They are saying ‘Just tell us what we should do’.”

The courts are not the answer

Chris Alderson is chief executive of Construction Health and Safety NZ (Chasnz) and was a key figure developing best practice guidelines around how businesses could operate in a post-Covid environment.

He says the risk if the Government fails to provide guidance is that the only way to resolve the uncertainty is through the courts. That’s an expensive way to get clarity, he says, and could leave everyone in the dark for months or years.

Earlier this year, a front-line Customs worker dismissed from her job for refusing to get vaccinated challenged the decision twice, but lost both times. On September 1, the Employment Relations Authority ruled Customs was justified in dismissing her under the provisions of the Government’s public health order, which mandates vaccination for MIQ and some border workers. The organisation had also followed the correct process.

The employee, who can’t be named and who has never given a reason for refusing to be vaccinated, also brought a judicial review challenging the lawfulness of the Government’s vaccination order. She claimed the order was “ultra vires” (beyond the powers of the COVID-19 Response Minister) and “irrational” (not supported by evidence or illogical) and therefore unlawful. In a judgment this week the High Court decided Customs’ actions were justified and threw out the worker’s case.

A Customs worker was dismissed for refusing to get vaccinated. Photo: Lynn Grieveson

Employment law specialist Tim Clarke, a partner with Bell Gully, says the High Court judgement is significant because the court has upheld the lawfulness of the vaccination order, which is an important part of the Government’s strategic response to Covid-19.

“The decision is also helpful in illustrating the tension between an individual’s rights (for example, against discrimination) and the importance of the Government’s actions in trying to minimise the risk of the spread of Covid-19 and its harm to the public,” Clarke says.

The problem for most businesses is the order is restricted to just MIQ and some border workers. Outside that, companies are left with the considerably more hazy risk assessment process. 

“Everyone is trying to do the right thing, but at the moment we are just lining up for a whole lot of case law,” Alderson says. “We’d like to see a framework clearly setting out some limits, so we aren’t all guessing. At the moment we are seeing a lot of misinformation from people with a vague understanding of bits of legislation like the Bill of Rights Act, jumping to conclusions.

“We need to make it simple. Here’s how the health and safety legislation works with the Bill of Rights, with the Employment Contracts Act and with Consumer Contracts. You shouldn’t have to consult a lawyer each time.

“There is general confusion, worry and concern from businesses about what they can and cannot do.”
– Alan McDonald, EMA

Newsroom got a similar message from other business advocates.

The Employers and Manufacturers Association is getting close to 200 calls a day, says Alan McDonald, head of advocacy and strategy. And legal issues around vaccinations is the single biggest issue businesses want advice on.

Alan McDonald says the Government needs to take the lead, not leave it for the courts. Photo: Supplied

“There is general confusion, worry and concern from businesses about what they can and cannot do.” McDonald says business leaders have been asking for clear guidance from the Government for some time. While there was a meeting with Cabinet minister Michael Woods a couple of weeks ago, as companies started coming out of lockdown and trying to deal with the issue, he says, there has been no word since.

“Our view is there are so many grey areas. The Government has to take the lead on this – they can’t say ‘Leave it to the courts to sort out’.”

The Government responds

Newsroom put the concerns from business leaders and advocates to the Government, emailing the Ministry of Health, MBIE and the Department of the Prime Minister and Cabinet’s Covid-19 Group.

A statement attributable to Christine Nolan, group manager operations (acting) Covid-19 for the Vaccination and Immunisation Programme, provided no information, let alone reassurance anyone was listening to SME owner worries. 

“The Ministry of Health is very encouraged to hear that businesses are considering ways in which they can encourage staff to get vaccinated,” the statement begins. “ A fully vaccinated workforce will help keep workplaces safe from COVID-19.”

With all due respect, that is not what Newsroom was asking about.

“We have spent much of the past nine months engaging with the business sector about workplace vaccinations, including encouraging business involvement in the development of the ‘workplace vaccination blueprint’,” the statement attributed to Nolan continues. 

The ministry doesn’t provide a link to said ‘workplace vaccination blueprint’ and a web search returns no results. However, Newsroom assumes Nolan is talking about the Government’s Temporary Workplace Sites Planning Blueprint, which is a document about the logistics and infrastructure needed to give Covid jabs in large worksites.

Again, this has nothing to do with the concerns around legal issues coming from businesses and their advocate groups.  

The email finishes by reassuring Newsroom that “the Government is working through a range of considerations as the vaccine rollout progresses, including public health requirements and guidance for businesses and services. We will continue to engage with businesses and employers as this work continues.”  

Newsroom thought this was the final word from Government, but just after the story was published on the website, we received an email from an MBIE spokesman.

“MBIE acknowledges that the rollout of Covid-19 vaccines has raised some important health and safety questions for businesses. As part of the multi-agency response, WorkSafe is currently putting together updated guidance on risk assessments for workplaces considering the impact of Covid-19 vaccinations, and anticipates this guidance will be published in the next few weeks.

“In relation to reliance on the courts to work through workforce vaccine issues, normal employment law applies and that means those issues may need to be tested in the Courts. Guidance on the current legal position is available on the Employment NZ and WorkSafe websites.”

A plan going forward

Francois Barton, executive director at the Business Leaders’ Health and Safety Forum, is not reassured by the Ministry of Health’s commitment to consult with business.

Francois Barton says Government is largely ignoring business when it comes to Covid planning. Photo: Supplied

In fact, his experience is quite the opposite, he says. He is frustrated the Government appears to be ignoring the views of business around the rollout, “like they ignored Pasifika and GPs in the early stages”.

He says Government needs a wider circle of advisors and to include business in developing a plan going forward.

“We need key participants to be around the table,” he says. “Without an agreed plan, a lot of people are having to figure this out for themselves.”

Chasnz’ Chris Alderson is more optimistic. He says the construction sector has two industry bodies – Chasnz and the Construction Accord – with the ear of Government and the chance to put an industry perspective across.

“It’s not perfect, but at the moment the industry often sees and anticipates practical issues better than Government.”

Chris Alderson, second from left, is wary of mandating vaccinations after what happened in Melbourne. Photo: Supplied

For example, Alderson says during the first lockdown in 2020, Chasnz was able to put together practical protocols for different building industry groups around how to reopen their sites safely. It then took those frameworks to the Government, which took them on board. 

“We’d like to see tough thinking done by the right people at the right time, and that’s now.”
– Chris Alderson

It was the same with trying to find solutions about getting vaccinations to construction workers.

“We started talking to Government eight months ago around vaccine availability for the construction industry. We really needed a plan, and at the end of the day were able to do a lot of matchmaking with private sector health organisations to get people vaccinated fast.” Alderson says.

Now he hopes to put some clarity around the legal issues around vaccinations and Covid risk worrying  businesses, many of them in the building industry. 

“We’d like to see tough thinking done by the right people at the right time – and that’s now. Then we want to see that talking translate into simple tools that SMEs can apply easily.”

Will it happen?

“I’m optimistic because we’ve got a track record already. The silver lining [of the Covid pandemic] is it’s brought Government and the construction industry closer together.

“We need each other. The industry has knowledge and the Government has power and resources to put things in place fast.”

Leaving it to the courts 

If a clear framework isn’t possible through industry and Government, companies and their owners and bosses are left with the prospect of finding out the hard way, through the courts, says Paul Mackay, employment relations policy manager for Business NZ. 

The legal profession is already thinking about it, he says.

“Talking to Employment Court judges, they would love to have a case in front of them to allow them to set some ground rules. No one wants to go to court, but in the place of legislation, court decisions would provide guidance.”

Mackay wonders if case law around companies drug testing employees in the workplace could potentially help guide how employers deal with Covid vaccinations. 

“Drug testing may be necessary to protect the safety of employees but may also be viewed as an unreasonable intrusion into the privacy of employees,” guidance on the Employment NZ site says.

Air NZ wanted to be able to randomly drug test all workers. The court said ‘No’. Photo supplied

“Drug testing may be reasonable if it is done with a view to protecting the safety of employees or the general public, for example if the employee works in a safety sensitive area or if the employee’s work directly impacts the safety of others (eg other employees or the public).”

In a landmark decision in 2004 in a case between Air New Zealand and six unions, the courts found employers could use drug testing in “safety sensitive areas” or when they an employee’s behaviour as a result of suspected drug or alcohol use could cause harm.

On the other hand, randomly testing employees outside safety sensitive areas was unreasonable, the judgment said.

Parallels with Smoke-free

Meanwhile Peter Davis, Emeritus Professor in population health and social science at the University of Auckland wonders about using the Smoke-free Environments Act as a template for legislation around workplace vaccine mandates. 

In an opinion piece in the New Zealand Herald, Davis compares the potential health damage for workers and customers from breathing secondhand smoke, with the potential risks from being at work with someone who is unvaccinated.

The parallel isn’t exactly the same – vaccinated people can still catch and pass on Covid, whereas someone who isn’t smoking is of no risk to people around them.

Smoke-free legislation ended up protection more than just workers. Photo: Lynn Grieveson

Still, it’s an interesting thought: taking legislation designed to protect people from one form of airborne harm in enclosed space, and applying it to another threat.

“Like the non-smoker of yesteryear, a vaccinated person on entering, say, a workplace, restaurant, bar, supermarket, or plane, would want to be reassured that their health was not at undue risk… from the unvaccinated who are the most likely vectors of Covid-19 in its troubling variants,” Davis says.

Maybe, says Chris Alderson, but he says you always need to be careful about the unintended consequences when you try to force people to do things.

Early last week the authorities in Melbourne shut down all building work for two weeks after a protest against a vaccine mandate turned violent. 

The state government, worried about Covid being spread on building sites, had ordered all construction workers to get at least their first jab by the end of the week.

Nikki Mandow was Newsroom's business editor and the 2021 Voyager Media Awards Business Journalist of the Year @NikkiMandow.

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