At 11:59pm last night (22 October 2021), the Government issued the legal order putting into effect the mandatory vaccination orders announced on 11 October 2021. Over previous days, the Government has also released a number of amendments to its COVID-19 Public Health Response Orders, covering testing and vaccination mandates.
We cover off the important aspects of these various orders in this article.
COVID-19 Public Health Response (Vaccinations) Amendment Order (No 3) 2021 (“Mandatory Vaccination Order”)
The COVID-19 Public Health Response (Vaccinations) Amendment Order (No 3) 2021 released at 11:59pm on 22 October 2021 (and coming into force at 11:59pm on 25 October 2021 outlines the expanded vaccination mandates for:
- workers in the health and disability sector (“Healthcare Mandate”);
- staff members of prisons; and
- workers (including volunteers and unpaid workers) in education services (“Education Mandate”).
A medical exemption is the only reason for not being required to be vaccinated.
The Mandatory Vaccination Order also prescribes an obligation for a Person Conducting a Business or Undertaking (“PCBU”), pursuant to the Health and Safety at Work Act 2015, which includes employers, to maintain a vaccination register. The vaccination register is to include names, contact details and the types of vaccines taken, the dates of vaccination and any medical exemptions.
The Healthcare Mandate requires that workers in the health and disability sector must receive their first dose of the COVID-19 vaccine by 15 November 2021, and must be fully vaccinated against COVID-19 by 1 January 2022. This short deadline to receive the first dose was determined on the basis that healthcare and disability workers have been able to be vaccinated against COVID-19 since March 2021.
The Healthcare Mandate applies to the following broad group of workers:
- Health practitioners, being practitioners that are regulated professions currently registered under the Health Practitioners Competence Assurance Act 2003, including;
- Workers who carry out work where health services are provided to members of the public by 1 or more health practitioners and whose role involves being within 2 metres or less of a health practitioner or a member of the public for a period of 15 minutes or more;
- Workers who are employed or engaged by certified providers (for example workers at a facility providing hospital care, rest home care, residential disability care, or fertility services) and carry out work at the premises at which health care services are provided; and
- Care and support workers.
The Education Mandate requires that education services (including early childhood services, registered schools, and hostels) must ensure that workers (including contractors, volunteers and unpaid workers) who may have contact with children and students or will be present at a time when children and students are also present have received their first dose of the COVID-19 vaccine by 15 November 2021 and be fully vaccinated against COVID-19 by 1 January 2022.
This order basically covers all workers on school grounds during the school term, including but not limited to teacher-aides, support staff (reception, administration), and maintenance staff. In our view, the order does not extend to visitors (parents at pick up etc) but extends to unpaid roles within the education institutions, particularly if they are on the premises during the school term. This may include parent volunteers, Trustees/Board Members, Committee Members and other volunteer/unpaid type roles.
Complementary to the Education Mandate, there are also additional testing requirements for schools and early learning services and providers, which are outlined further below.
In addition to the Education Mandate, secondary schools and kura are required to keep a COVID-19 vaccination register for students. Where a student does not produce evidence of COVID-19 vaccination, the student must be considered as unvaccinated.
Any workers covered by the Healthcare Mandate or the Education Mandate who do not receive their first dose of the COVID-19 vaccine, by the specified deadline will be unable to remain in their role. The only exception applying to those with medical exemptions.
Required testing in Education Sector
The COVID-19 Public Health Response (Required Testing) Amendment Order (No 4) 2021 came into effect at 11.59pm on 17 October 2021, which imposes COVID-19 testing requirements to affected education services within the Alert Level 3 area (currently Auckland and Waikato).
The amendment order introduces the following testing requirements:
- an affected person who is physically attending or performing work or providing a service onsite at an early childhood service or a hostel must provide the relevant PCBU with a negative COVID-19 test result or proof of a medical exemption from the requirement to take a test by 26 October 2021.
- an affected person must not physically attend or perform work or provide a service onsite at an effected education service, other than a home-based education and care service, unless they have provided the relevant PCBU with a negative COVID-19 test result obtained within the previous five days or proof of a medical exemption from the requirement to take a test.
- an affected person must not operate a home-based education and care service after 26 October 2021 unless every person over the age of 12 who resides in the home where the service is to be provided has provided the relevant PCBU with a negative COVID-19 test result obtained within the previous five days or proof of a medical exemption from the requirement to take a test.
- until 1 January 2022, a person who is entitled to physically attend or perform work or provide a service onsite at an affected education service, but has not been vaccinated (currently being two doses of the Pfizer-BioNTech/Comirnaty vaccine), can continue to physically attend or perform the work or provide the service onsite at the affected education service on the condition that they provide the relevant PCBU with a negative COVID-19 test result at least once every seven days until they have been vaccinated or proof of a medical exemption from the requirement to take a test. For home-based education and care services, that information must be provided to the relevant PCBU by every affected person who resides in the home where the service is provided.
“Affected education service” is defined as an early childhood service (including home-based education and care services and hospital-based education and care services, but not including playgroups), a registered school, and hostels.
“Affected persons” includes:
- employees of an affected education service;
- individuals performing work or providing a service to an affected education service, including volunteers or unpaid workers, who may have contact with children or students in the course of performing the work or providing the service; and
- in the case of home-based education and care services, individuals over the age of 12 who reside in the home where the service is provided.
Failure to comply with these testing requirements could result in an infringement fee of $300 or a fine of up to $1,000.
Non-Pfizer Vaccines and COVID-19 Vaccination Registers
The COVID-19 Public Health Response (Vaccinations) Amendment Order (No 2) 2021 amends the vaccination requirements to acknowledge that affected persons may be vaccinated, or partially vaccinated, with other types of COVID-19 vaccines which are available overseas. In doing so, this amendment order expands the definition of “vaccinated” to include situations where the affected person has received, in accordance with the stated administration requirements:
- Two doses of Comirnaty (also known as Pfizer/BioNTech);
- Two doses of AstraZeneca;
- Two doses of Moderna;
- One dose of Janssen;
- One dose of AstraZeneca and one dose of Comirnaty; and
- One dose of Moderna and one dose of Comirnaty.
This change will address situations where individuals returning from overseas have received a COVID-19 vaccination other than Comirnaty, which is the only COVID-19 vaccine currently available in New Zealand.
This amendment order enables the Director-General to authorise an affected person who has not been fully vaccinated to carry out certain work, following an application from the relevant PCBU. Authorisation can only be given if the affected person has received at least one dose of a COVID-19 vaccine and the Director-General is satisfied that, considering the work to be carried out by the person, the receipt of that vaccine dose adequately prevents, or limits the risk of, an outbreak or the spread of COVID-19. The Director-General may impose conditions on any authorisation made (for example, that the affected person receives their second dose within a specified timeframe).
This amendment order also updates the duties of a PCBU regarding the maintenance of a COVID-19 vaccination register. Before allowing an affected person to actually carry out certain work, a PCBU must update the register to provide the Ministry of Health with confirmation that the person is an affected person. The PCBU must then:
- ask the Ministry of Health to provide details of the COVID-19 vaccination record of an affected person who the PCBU employs or has engaged to carry out certain work; or
- access the register to obtain the affected person’s COVID-19 vaccination record.
The PCBU must inform an affected person if the affected person’s COVID-19 vaccination record shows that the person is not vaccinated.
Affected persons must now allow the relevant PCBU to access any COVID-19 vaccination record that the Ministry of Health may have for them, and advise the relevant PCBU is they have received one or more doses of a COVID-19 vaccine or a combination of COVID-19 vaccines outside New Zealand. If an affected person believes that their COVID-19 vaccination record is not up to date, they may:
- notify the relevant PCBU of this fact; and
- provide the relevant PCBU with evidence of having received a COVID-19 vaccine and the date on which it was received.
Affected persons who are exempt from the requirement to be vaccinated against COVID-19 must provide written confirmation of that to the relevant PCBU, and to an enforcement officer on request.
Here, “affected person” includes specified groups in the following industries:
- managed quarantine facilities;
- managed isolation facilities;
- airports and ports;
- health and disability;
- prisons; and
If you have any questions regarding the latest Public Health Orders, or about the impact of COVID-19 on the workplace, please feel free to contact us on 0800 339 002.