“Uncertainty about whether workplaces can require vaccination certificates under the status quo is creating great anxiety in workplaces. Government needs to deal with this uncertainty by giving clarity on how health and safety, privacy, and discrimination laws interact,” says ACT Leader David Seymour.
“ACT has a plan that would deliver certainty for employees, customers and businesses by clarifying that the setting of health and safety measures, such as requiring vaccine certificates, is permitted and is not subject to claims of a breach of privacy or discrimination.
“ACT would provide further guidance on meeting health and safety obligations with a traffic light system based on the level of exposure and strategic risk faced by employees. For example, someone working with elderly in a rest home would be red, someone working from home in a remote call centre would be green.
“The current uncertainty comes on top of months of pain for business from an unending lockdown with unclear goals. ACT has said throughout this pandemic that Government needs to do more to set clear rules of the game, our first COVID paper last August said Government should focus on being a good referee, not a player.
“When it comes to workplaces, businesses need to balance health and safety obligations with non-discrimination requirements. They’re walking a tightrope with the Government unhelpfully shouting from the stalls.
“Currently, businesses are required by the Health and Safety at Work Act to ensure the health and safety of their employees and people coming into the business. They must take all reasonable steps to mitigate health and safety risks. COVID is a risk and vaccination is a mitigation, suggesting employers are obliged to check that vaccination is in place
“At the same time, many businesses are expressing concern and receiving legal advice that requiring vaccination certificates would be challenged in court on privacy or discrimination grounds.
“The Government, once again instead of providing leadership on this issue, has kicked for touch. It announced vaccine certificates without clarifying how they can be used.
“Employers now have to deal with legal uncertainty on top of conflict between employees, with those who don’t want to work with unvaccinated customers and colleagues as insistent as those who refuse to be vaccinated.
ACT’s plan:
- Amend the Health and Safety at Work Act to expressly allow for businesses to put in place safety measures, such as requiring vaccine certificates or a negative COVID-19 test to limit the spread of COVID-19
- Clarify that these measures could be required by employers and are not subject to legal challenge if employers did require them
- Amend the Health and Safety at Work Act to add a provision to allow for the ending of an employment agreement for someone acting in a wilfully irresponsible manner in respect of health and safety in the workplace including being reckless when it comes to transmission of COVID-19 in the workplace
- Establish a traffic light system for businesses to determine for themselves based on contact with people, volume of persons through the business, strategic overview of the business in the wider supply chain, and whether they are based in high population areas
- The traffic light system would provide different standards for managing the risk of COVID-19.
o High risk: would allow for businesses to impose mandatory vaccine certification for employees including requiring employees to provide certification, end employment agreements for non-compliance, require vaccine certificates for customers and indemnity from discrimination rules (subject to certain exclusions), and undertake other safety measures to ensure risks transmission are minimised.
o Medium risk: allowed to require vaccine certificates for customers, require vaccine certificates from employees, a different process for non-compliance requiring businesses to look at alternate options to minimise risk of transmission first.
o Low risk: allowed to require vaccine certificates for customers.
Businesses and customers:
- Businesses would be able to require vaccination certification as a condition of entry. ACT would ensure that businesses could do this without facing litigation for discrimination
- In some cases, people have not been able to receive the vaccine due to medical reasons. In these cases, businesses would not have the same protection from litigation
- Essential services, such as the provision of food or other necessities, would still need to be able to be accessed by persons who do not have a vaccine, though the provision of service would be different depending on risk.
o High risk: Provide service based on Alert Level 3 standards: click and collect, masks, sanitising rules, contact tracing etc.
o Medium risk: need to be able to provide a way to access services.
o Low risk: base safety standards of masks, contact tracing, sanitising.
“It’s time to show leadership on things that will allow us to get back up and running as a country. New Zealanders want clear rules and pathway forward. ACT’s plan would give them that.”