Watching this webinar was a bit like looking behind the curtain on the ‘Wizard of Oz”. With a line of stellar minds, you got of glimpse of exactly what high-level professionals supporting the construction industry are thinking about asking workers to have a Covid vaccination and complex issues such as mandatory vaccinations.
The Webinar Panel included:
Janine Stewart (Partner and Division Leader, Construction)
Travis Tomlinson (Partner – Construction)
Gillian Service (Partner – Employment)
Thanks to a doctor deciding that it was ok not to tell patients that they had cancer symptoms and to conduct invasive procedures without consent we had the 1988 Cartwright Inquiry. The recommendations from the inquiry saw the development of a legislated Code of Patients’ Rights. This includes:
Right 7: The right to make an informed choice and give informed consent.
The right to refuse medical treatment is also referenced in the New Zealand Bill of Rights Act 1990, section 11 Right to refuse to undergo medical treatment.
This means people have a right to say they will not get vaccinated.
However, since the outbreak of Covid 19, it has been established that some employers have a duty to ensure that people working in certain roles are vaccinated. See COVID-19 Public Health Response (Vaccinations) Order 2021. For example, workers at quarantine facilities, managed isolation facilities, and aircrews are expected to be vaccinated and regularly tested for Covid 19.
So far, we know that vaccines do reduce the risk of getting Covid 19, and if someone is infected it will reduce the severity of infection. Interestingly, Fiji has moved to mandatory vaccinations and Australia has made it mandatory for health practitioners.
What’s the problem?
What happens when your construction project is on a ‘high-risk site’ such as at a rest home, and if a site has to be closed down due to a Covid 19 infection, who carries the risk?
Under strict legal terms, if you have a contract with a sub-contractor to perform work, they have the right to access the site. If you are the principal contractor, you do have the right to manage people’s behaviours on-site and can exercise the right to make a contract variation. However, as Travis Tomlinson said if you try and enforce a ‘no jab, no access’ rule the outcome is unlikely to be positive.
A more fruitful response will be to coordinate, consult and co-operate with your team of contractors. You may, in certain site-specific cases rely on the CHASNZ Bow Tie Analysis and analyse the likelihood of getting infected and the significance of harm if someone is infected (think of people in a high-risk category). You’ll also need to think about a mask-wearing protocol and the requirements for Covid 19 testing.
It’s easier to require workers to get a vaccine if you are setting up a new project where you can make it a contractual requirement. However, if you’re working on an existing contract and trying to pursue this line of thought the recommendation from the webinar team is to tread carefully and seek legal advice to make sure you aren’t creating an ‘own goal’ under the Health and Safety at Work Act 2015, Employment Relations Act 2000and Privacy Act 2020.
As much as one worker may refuse to work with an unvaccinated worker because they deem it to be unsafe under section 83 HSWA 2015 under New Zealand employment law, an employer can’t simply initiate a redundancy process to extradite the worker who is vaccine-hesitant.
What next?
- Check the CHASNZ guidelines on Getting Ready to Go Back in Level 3Educate your workers and encourage them to get vaccinated. Here is a list of my favourite resources:
MBIE Vaccines and the workplace
WorksafeNZ Assessing whether a specific role needs to be performed by a vaccinated worker
Unite Against Covid19 NZ Vaccine development, safety and effectiveness
World Health Organisation COVID-19 vaccines
2. Make it as easy as possible for workers to get their vaccines by removing barriers. Make sure people can take paid sick leave to get their vaccine and hopefully, we’ll go the way of Australia and all those who are vaccinated will be issued with a digital certificate. Right now, if your paper vaccination certificate gets lost or destroyed the next best thing is to apply for a vaccination passport.
3. Remember some people legitimately cannot get a vaccine for medical reasons, their dignity and privacy need to be respected.
4. Have clear strategies that are communicated to all stakeholders about what will happen if there is a Coivd 19 cluster on site.
Conclusion
Personally, I’d like to sit this crew down at a table with a bottle of gin and hear their real war stories that are not for webinar consumption. However, this wasn’t what today’s presentation was all about. My two final thoughts are:
- Requiring workers to get vaccinated is a complex issue, there are no easy solutions and your response will need to be site-specific.
- Whatever happens, having careful and courageous conversations Covid vaccination options with all your stakeholders will be the only way forward.