• Phil Anderson
    6
    correct, there is still the possibility that a vaccinated person can still carry the virus and spread it. i have been fully vaccinated but still feel vulnerable.
  • SafetylawyerNZ
    84
    This is an area where things are changing fast and the answers are complex. The Government has expanded the scope of the Public Health Orders several times, and more organisations are now doing risk assessments and considering whether vaccination is a reasonable requirement for some (or all) roles. It is important for organisations to consult with their workers during the risk assessment process (you'd be surprised how many aren't, or are paying lip service) and, again, before any decisions are made that affect someone's employment status.

    The PM confirmed a couple of days ago that the Government is not going to make vaccination compulsory. That passes the buck to businesses to decide whether they create a de facto national standard, based on customer concerns or broader health and safety risk assessments, and refuse to allow unvaccinated people to access goods and services.

    Organisations doing this may create a new health and safety risk, as it isn't hard to imagine unvaccinated people getting violent when refused service.

    When in doubt, my (not entirely self-interested) suggestion is that people should consult their lawyer :)
  • Jarron Urlic
    2
    The new one I have just heard from a company is "no, we won't make it mandatory but we really encourage you to get it however if the customer requires it then we will need to pass on that requirement"

    This seems like another attempt to contract out of their responsibilities as an employer?
  • Steve H
    220
    however if the customer requires it then we will need to pass on that requirement"Jarron Urlic

    Of course, you have to wonder how the customer that insists that contractors (and their staff) visiting the clients site, must be vaccinated, are getting on with doing the same to their staff. Or is it a case of do as I say, not as I do?
  • MattD2
    237
    This seems like another attempt to contract out of their responsibilities as an employer?Jarron Urlic
    I don't see it that way - employers have to manage the risk, if they have assessed that the risk to their workers due to their work is not significantly reduced by mandatory vaccination then they shouldn't require it. If a client/customer has assessed mandatory vaccination will for reduce the risk for their work in their workplace then they should require it (hoping it is not just a knee-jerk blanket policy). For ease of doing business the first company can organis their work so that only workers that are happy to disclose they are vaccinated work for the second company. No contracting out.
  • robyn moses
    45
    Interesting public statement out of Australia this week in respect to a worker who appealed against being fired for refusing a flu vaccination. The key take away on pages 31-44 Part 2 of the decision being when asked if employers can mandate covid vaccinations under a public health order the Trade Unions, Business Counsel, Fair Work Commission and Safe Work Australia answered NO it cannot be mandated in almost every work place in Australian when there is another alternative to assist employers to meet their H&S obligations and that is by means of testing (PCR) as testing is arguable a better control measure than vaccines, given that the purposes of the vaccine is to reduce symptoms rather than prevent vaccinated workers from carrying the virus.
  • MattD2
    237
    when there is another alternative to assist employers to meet their H&S obligations and that is by means of testing (PCR) as testing is arguable a better control measure than vaccines because research has shown that vaccinated workers can still carry the virus.robyn moses
    It is frustrating for me that "this virus" seems to have caused everyone to think that there is one single "silver bullet" to beat Covid that everyone should be following. Even the advice to complete a risk assessment for mandatory vaccinations is worded in a way that implies the process is - decide you want to mandate vaccinations, then do a risk assessment to show that mandatory vaccinations will reduce the risk"
    We need to stop discussing this as an exclusive this or that issue and start discussing it as a range of actions we can take to best manage the risks.

    The government is pushing the vaccination card - let them do that, provide your employees that want to get vaccinated with the time to do so (and to recover afterwards if needed), but don't overstep the mark thinking that if you can get all your workers vaccinated you will have sufficiently managed the risk.

    I don't see how they are pushing PCR testing as an direct alternative to vaccinations. Firstly being that you are still in the same boat as vaccinations since you cannot make anyone get tested as again it is a medical treatment (the government has established that requiring mandatory testing for managing a Covid outbreak, e.g. for contact tracing and where a person has been identified as a close contact / at higher risk of being infected, is allowable under the bill of rights. However I do not think "to allow a business to operate (or operate more freely)" would be an acceptable reason to limit a person's right to refuse PCR testing). And secondly it is not equivalent - vaccines reduce the risk of a person experiencing serious symptoms (and could be claimed to reduce the risk of infections from not having someone coughing/sneezing the virus all over the workplace, but then again it could also increase the risk as there will now be more asymptomatic / mildly symptomatic cases coming to work that can still transmit the virus), whereas the PCR testing identifies (after a 1-2+ days) those who have the virus present in their systems so they can be removed from the workplace to reduce the risk of infections... i.e. they both have the potential to reduce the risk, just by different means and therefore should be applied where (if) they are suitable to the work/workplace.

    In my opinion a NZ business's Covid risk assessment should be focused on the risks that the business creates for a worker (or a person affected by the activities) regarding Covid, in the framework of a increase of risk compared to a "normal" member of the public, e.g.
    A typical retail business would not require any more controls over what the NZ Government requirements for the general public (face masks while indoors, limited occupancy, etc.).
    Working in a workplace with people more vulnerable to Covid (e.g. nursing homes) requires controls to manage the risk of transmission of the virus to those people.
    Work which increases the exposure to the virus (e.g. Covid testing labs, MIQ facilities) requires controls to manage the risk of infections of workers during work.

    This is ofcorse with a viewpoint from a safety perspective... a business continuity perspective would look somewhat different, and we need to be sure that the controls that are put in place in the name of safety are not the guise of safety but in fact only there for other purposes.
  • Steve H
    220
    Trade Unions, Business Counsel, Fair Work Commission and Safe Work Australia answered NO it cannot be mandated in almost every work place in Australianrobyn moses

    We're not in the Western Islands Robyn, see the NZ High Court Judgement that is applicable here for boarder workers and others covered by our Covid Public Health Order.

    when there is another alternative to assist employers to meet their H&S obligations and that is by means of testing (PCR)robyn moses



    As Matt has pointed out, in a general workplace an employer can't insist on PCR testing as that would run foul of the Bill Of Rights legislation. It will be interesting to see what solutions come out of the woodwork.
  • Stuart Oakey
    30
    Work which increases the exposure to the virus (e.g. Covid testing labs, MIQ facilities) requires controls to manage the risk of infections of workers during workMattD2

    I agree with Matt, it's a risk based approach. The Border Order requires border workers to be vaccinated and undergo regular health testing (swabbing). Healthcare workers who are at risk of exposure such as MIQ or Community testing stations or Emergency Departments are required to be vaccinated and undergo regular health monitoring as part of their employers terms of employment & Health & Safety risk controls.

    Replace virus / COVID-19 with a different Biological Hazardous Substance, what controls & health monitoring would be reasonable? And would there be such a clamour of debate?
  • Rowly Brown
    48
    The purpose of Risk Assessments is to determine the level of risk a particular issue poses to a business. If the effect of a Covid infection amongst the business's workforce would have a seriously damaging impact on the business, the business should consider available options to mitigate that possible damage. If vaccinations and/or infection testing (several testing methods could be considered) potentially reduce the severity of infections if they occur, or the likelihood that infections will occur, or some other measures might reduce exposures to possibly infected people, are those reasonably practicable steps to take? Are they likely to significantly reduce the risk infected people would otherwise present to the business. If the answer is yes, then the business is, prima facie, able to consider implementing those controls. Other considerations such as individual rights, contingent difficulties in implementation, loss of key personnel etc need to be evaluated before a final decision is made. Individual rights don't trump everything else. We have a Court case relating to essential workers (Customs Dept) that establishes employer's rights to manage their business risk in this regard. Others above have iterated similar valid arguments. If the intended actions have a minimal impact on the business's assessment of risk then the measures might be difficult to justify vis a vis the impact on employees. the public good probably also needs to be factored in.
  • Steve H
    220
    Replace virus / COVID-19 with a different Biological Hazardous SubstanceStuart Oakey

    Thing is Stuart, it is a virus and as such from a H&S perspective what controls and monitoring Are you thinking of?

    It will be interesting to see how Ireland fares, given a similar population size, and number of ICU beds. Ireland's Department Of Enterprise, Trade And Employment has developed a Work Safely Protocol worth down loading and having a read. Sections of particular interest could be D. Heating, Ventilation and Air Conditioning (HVAC) Pg 43.

    If as a part of your risk assessment, you are going to use CO2 monitors to identify poorly ventilated areas, there is some HSE advice here,

    Control of ventilation does seem to be a key aspect of preventing the spread of Covid19's latest variant, along with cleaning, the Irish protocol has this to say on that:

    D10. Cleaning
    Employers must:
    • implement thorough and regular cleaning of frequently touched surfaces. If disinfection of an
    area is required, it must be performed in addition to cleaning, never as a substitute for
    cleaning,

    • ensure contact/touch surfaces such as table tops, work equipment, door handles and
    handrails are visibly clean at all times and are cleaned at least twice daily,

    • implement modified cleaning intervals for rooms and work areas. This applies especially for
    washroom facilities, lockers and communal spaces. Cleaning should be performed at least
    twice per day and whenever facilities are visibly dirty,

    • provide workers with essential cleaning materials to keep their own workspace clean
    (for example wipes/disinfection products, paper towels and waste bins/bags),

    • provide workers with hand sanitisers and cleaning equipment for their work vehicle,
    with cleaning taking place before and after each shift,

    • increase number of waste collection points and ensure these are emptied regularly
    throughout and at the end of each day, and

    • modify use of hot desks to ensure that these are made available to identified staff
    and have appropriate cleaning materials in place for workers to clean the area before
    and after using

    Note: In relation to routine disposal of waste in the workplace, waste such as used tissues,
    wipes and cleaning material should be disposed of in the regular domestic waste stream.
    Hands should be cleaned immediately after disposal of these items.
    In relation to disposal of waste from a worker who becomes symptomatic while at work,
    this waste should be disposed of in a disposable refuse bag.
    When the waste bag is three quarters full, it should be tied securely and placed into a second refuse bag and tied again. The bag should then be left in a safe location for three days (72 hours) before putting out for collection.
    For further advice, please contact your relevant Local Authority
    Department Of Enterprise, Trade And Employment (Ireland)
  • robyn moses
    45
    CO2 monitors to identify poorly ventilated areas and Irish protocol Steve H
    We started using the C02 function on our multi gas detectors early on in the pandemic. It has proved invaluable in identifying poorly ventilated areas in the workplace. My Irish daughter-in-law supplied me with a copy of their workplace safety protocol, it is comprehensive and an excellent guide. I am sure there are many more innovative technologies that will come to market and form part of our controls such as the home test kit and pulse oximeters.
  • Steve H
    220
    For a sealed up room, that can't be readily ventilated, it may be worth investigating portable filtration units with HEPA filters. Just been reading COVID-19 Outbreak and Hospital Air Quality: A Systematic Review of Evidence on Air Filtration and Re-circulation , bit of light bedtime reading :smile:
  • Andrew
    324
    I would like to contribute to this thread. However there has been no covid in Christchurch for 339 days.

    Should it arrive my first point of call will be S11 of the Bill of Rights Act "Everyone has the right to refuse to undergo any medical treatment."
  • KeithH
    94
    @Andrew S11 of the Bill of Rights is a valid principle.

    Might I expand on some others that I based my decision on..
    Taking the probability an employer or any other person or business contracting my services conducts a risk assessment that determines Covid presents a hazard where vaccination is a control to eliminate or minimise the hazard, then an opposing legal point presents itself.
    The Human Rights Commission outlines the risk assessment criteria here - HRC.


    As you correctly mention Andrew, "Everyone has the right to refuse to undergo any medical treatment".
    Equally in HSWA PCBUs who "manage (sic) or control (sic) a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace are without risks to the health and safety of any person. (HSWA S37(1)).

    And workers have obligations also - S45 HSWA - to "(a) take reasonable care for his or her own health and safety; and
    (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
    (c) comply, as far as the worker is reasonably able, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with this Act or regulations; and
    (d) co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers."


    Employment law also plays it's part with Employment New Zealand providing guidance for altering a workers' employment agreement - ENZ.

    In all these situations, the underlying guidance is on good faith and communication.


    Considerations unvaccinated individuals may need to reflect on are potential changes of roles in employment, possible termination if alterative roles are unavailable, peer pressure by collegues, social media comments (S14 Freedom of Expression) and more.


    Just my ramblings.
  • Steve H
    220
    Wot Keith said :up:
  • Jane
    17
    I am sure I have walked past the MIQ hotels in Christchurch? Presumably positive cases crop up from time to time there, and there are people that work with those positive cases in Christchurch.

    I would just like to shout out to all the people working so hard behind the scenes, that need to be wearing the PPE and doing all the good stuff in their workplace every single day to mitigate the risks. It is not just the people on the front line either, but all the people supporting them and their management and bosses that are making the hard decisions. It is because of their their hard work every single day that has allowed others to feel safe.
  • MattD2
    237
    If the effect of a Covid infection amongst the business's workforce would have a seriously damaging impact on the business, the business should consider available options to mitigate that possible damage. If vaccinations and/or infection testing (several testing methods could be considered) potentially reduce the severity of infections if they occur, or the likelihood that infections will occur, or some other measures might reduce exposures to possibly infected people, are those reasonably practicable steps to take?Rowly Brown
    No. Not if the reason is purely to manage an negative impact on the business (implying financial loss). We should never accept profit as a valid reason for limiting any persons rights.
    Is it ok for a company to suppress a worker from speaking out about the dangers of a product that are being kept from the public because it would damage the companies reputation and profits? (i.e. limit the worker's right to freedom of expression)

    This is taking the question of mandatory vaccinations outside of the pure consideration of the health and safety of the workers and others affected by the business. And unfortunately this is where I think most general business that are talking mandatory vaccination are really going with it. While on the surface the reasons given are about protecting their workers or customers/clients from Covid, but underneath that there are worries about protecting against either; the loss of business (customers going elsewhere, e.g. shopping online or to a place that has mandated vaccinated workers), and/or the increase in costs (e.g. additional cleaning/barriers/etc. or employees having to take sick leave).
    Which I fully understand as for a lot of SMEs minor changes in these can have a devastating effect on the business, even to the point of the business failing completely.
    It is a rough place to be, but as others have said communication is the key. Consult with all stakeholders in your businesses (workers and customers/clients), and act in good faith (especially not covering things in the guise of "for safety").
  • MattD2
    237
    Equally in HSWA PCBUs who "manage (sic) or control (sic) a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace are without risks to the health and safety of any person. (HSWA S37(1)).KeithH
    The final test for reasonably practicable includes for consideration of "...whether the cost is grossly disproportionate to the risk." - normally this is considered from a monetary viewpoint to determine if there is reasonable grounds to not take a certain action. However costs are not just financial, in this case should we not consider the cost of forfeiting a human right and make sure that it is not disproportional to the action being taken, i.e. is the reduction in risk from mandating vaccinations disproportional to the workers giving up their right to refuse medical treatment?
  • Robb
    35
    What is still factual (Under the current Health Orders, Privacy Act, Bill of Rights, etc.) is that we cannot mandate vaccinations for a person. As safety professionals, we can only identify roles required to be performed by vaccinated workers.
    Keeping that as the first thought when this topic comes up, I believe, makes finding an answer easier. The focus needs to be on the role’s potential exposure to the virus, not the worker performing it.

    Before mandating any role as a vaccine required role, we must assess the role for the role’s exposure risk to the virus. As with any assessment, it needs to happen in collaboration with the workers and HSE representatives.

    The risk assessment for exposure to COVID-19 should consider two factors about the role:
    1. Identifying the likelihood of COVID-19 exposure - the likelihood of a worker being exposed to COVID-19 while performing the role, and
    2. Identifying the potential of that exposure on others - the potential consequences of that exposure on others (e.g. community spread).

    To help work out potential consequences, consider if the role involves regular contact with others that may be at high risk (of severe illness) if they contract COVID-19.

    Completing the risk assessment
    If there’s a high likelihood that the role will expose the person performing it to COVID-19, and the consequences would be significant for the worker and other people, then, in that case, it’s likely the role needs to be performed by a vaccinated person.

    And of course, as part of any assessment, it has to be acknowledged that no vaccine is 100% effective, and there is some chance a vaccinated worker may become infected with COVID-19 and still transmit the virus to other people!

    Like mandating specific training requirements for a role (such as harness training when working at height), mandating a role required to be performed by a vaccinated worker means a PCBU meets their duties under the HSWA.

    Finally, we all know of other risks associated with Covid that sit outside of safety; but other forums can debate them!
  • Tony Walton
    116
    This Delta Covid is a serious crisis regardless of the legislative norms that are ignorant of the current situation. We simply need to apply the concept of "what would a reasonable person (or PCBU) do under the circumstances of the situation" and set a strategy for dealing with the crisis and who will do what. This is a decision for senior management and their legal advisors - that's their job. After all, who's running the show and who's /=? #* is on the line. They should be telling health & safety people (as a resource) how they need to implement the Covid strategic plan and report its effectiveness.
  • KeithH
    94
    My earlier post was in reply to @Andrew's comment and was to suggest other legislation.

    @MattD2, - I don't disagree. However, perhaps the courts are a better platform to gain clarity.


    Covid, especially the Delta variant, currently has centre stage for some very valid reasons.
    It has not been the only pandemic or PHEIC over the last 120 years however.
    Since 1899, there have been:
    • Cholera
    • Spanish Flu
    • H2N2 Asian Flu
    • H3N2 Hong Kong Flu
    • SARS
    • H1N1 Avian Flu
    • MERS
    • Polio
    • Ebola
    • Malaria, and
    • Zika, to name the main ones.
    (Source Major Epidemics of the Modern Era)

    Taking current H&S knowledge back in time, what would the risk assessment for each outbreak reveal? What controls could apply. Would the remaining risk for each assessment be acceptable?

    And after conducting a risk assessment for Covid, would the assessment be similar or different?
    What lessons could be learned? Just viewing from a different angle.


    Just my ramblings.
  • robyn moses
    45
    I think this whole thread just shows how many perspectives there are on this matter, overall a reflection of the confusion emitting from our leaders, enforcement agencies trying to enforce it, HS in workplace and our workers.

    Our right to refuse medical treatment is protected under common law and is written into the Bill of Rights Act, Section 11 “Everyone has the right to refuse to undergo any medical treatment”. By compelling a person to receive a medical treatment or lose their employment they no longer have the ability to provide informed consent and are instead providing coerced consent.

    The Covid-19 Public Health Response Act 2020, powers granted to Ministers are confined to the Bill Of Rights Act 1990, that Bill would override such legislation, including ministerial powers under such legislation; they would need to justify any limitations ordered on those rights, really it can only be overridden when someone or some group shows up with Ebola or some other plague

    Therefore the threshold for mandatory vaccination is high especially for workers who are non boarder facing or employed in health care. Mandating it for teachers, tradies, KFC workers is questionable.

    There is no definition of Covid other than flu type symptoms in the Covid Act otherwise the Act would fit into the framework of the NZ Health Act, part 3 Infectious and Notifiable Diseases purpose of which is the prevention of outbreak and spread; powers under both pieces of legislation are not dissimilar.

    This seems to fit with panels of experts such as the EU High Consequence Infectious Disease (HCID)and Advisory Committee on Dangerous Pathogens (ACDP). Tasked with guiding UK public health response on up to date worldwide data for mortality from the like of viruses like diseases. HCIDs include Middle East respiratory syndrome and severe acute respiratory syndrome (SARS)

    In as early as March 2020 and still applicable today, they classified covid as a non-infectious disease of note due to overall low mortality in the general population.

    They found that those most of risk of death are those at: end of life in a hospital setting including home based respite care due to fragility, disease or comorbidity; and, the medical teams, caregivers and families of those patients; and that

    Numerous factors skewer mortality rates including: standard of available public health care; health of population ( >90% of all USA covid deaths is said to have occurred in people living with 4+ comorbidities); available treatment options (UE has for example lifted the ban on a treatment option with an almost 100% success rate in reducing mortality in all covid patients incl. those most at risk) our Covid Bill seeks to prohibit the use of that treatment in NZ ) and rates of naturally acquired immunity in the population as reported out of Israel suggest vaccine against preventing COVID-19 infection was reported to be 39%], substantially lower than the trial efficacy of 96%]. It is also emerging that immunity derived from the Pfizer-BioNTech vaccine may not be as strong as immunity acquired through recovery from the COVID-19 virus .A substantial decline in immunity from mRNA vaccines 6-months post immunization has also been reported

    While vaccinations form part of a business’ methods of controlling the risk of infection, employers must therefore have other plans in place if workers refuse. Our prime minster spoke of quick fire rapid test kits in workplaces and airports already in use in other countries.

    For employers who make vaccines mandatory to continue on-site work, by doing so it could lead to legal challenges in the future. Employers must be prepared for that and weigh up alternatives to mandatory vaccinations if it comes to it.

    We will also need to consider that we already know that both the vaccinated and unvaccinated carry the same viral loads, what implications will this pose for say a vaccinated electrician with viral load going into the home of a new born to complete work.
  • Sarah Becker
    9
    This is great as I was starting to think about ventilation as its been mentioned heaps, but not a lot of detail provided
  • Steve H
    220
    Another ventilation assessment link for you Sarah, it's pitched at school/uni classrooms, but applicable to an office Ventilation Rate Assessment Guide
  • Michael Wilson
    113
    I feel the best result would be achieved with adding more layers of cheese.

    1. Vaccine
    2. Distancing
    3. Sanitiser
    4. Other sanitation
    5. Reduced travel
    6. Testing
    7. Work from home flexibility

    Now a lot of these are just good ideas even without Covid.
  • E Baxter
    26
    The British Occupational Hygiene Society have a very easy tool to use - https://breathefreely.org.uk/ventilation-tool/
  • Steve H
    220
    That is a nice easy tool :smile:
  • MattD2
    237
    Just saw the Business Leaders H&S Forum released yesterday resources for "Covid Vaccination Policy Support"

    I personally cannot believe that in their "Leadership Statement" they have stated that "the Forum’s leadership position is that vaccinations are the most effective control to protecting people’s health and therefore can be mandated for any workers’ roles." (emphasis added).
    So effectively this is the CEOs of most of NZ's large companies saying that there is no need to do a risk assessment anymore before we mandate vaccinations in any of our organisations. This is contrary to WorkSafe's advice, but I guess that can be somewhat forgiven since the Government itself at yesterday's press release essential did the same with their statement that "if you are going to use the Vaccine Certificate scheme then all your workers will have to be vaccinated as well." - again essentially sidestepping WorkSafe's advice that a risk assessment should be done before considering vaccine mandates (including considering "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)")
  • robyn moses
    45
    So effectively this is the CEOs of most of NZ's large companies saying that there is no need to do a risk assessment anymore before we mandate vaccinations in any of our organisations.

    In my organization of 500 staff employed between 4 sites in the north and south Island anything to do with covid from its onset is decided between PCBU and HR and then we are all instructed what is required of us under the plan including the recent obtaining of individual vaccine status. HS role has been to source best PPE; conduct extraction/ventilation surveys; and police hygiene practices are followed. This morning I have been given the heads up that the workplace is looking to register in the Vaccine Cert. Scheme. The business is not open to the public, entry is restricted, it is not involved in the boarder, health care, hospitality or hairdresser industries. It is an essential service so has operated through all levels of lockdowns and has had not one incident of covid outbreak in the work place. Tell me again how this comes under Health and Safety Leg.
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