On 11 October 2021 the Government announced that the 'groups of affected persons' in the COVID-19 Public Health Response (Vaccinations) Order 2021 (Order) will be extended to include high-risk workers in the health and disability sector, and school and early learning staff and support people who have contact with children and students.
While the Government is yet to formally update the Order, the Minister for COVID-19 Response, Chris Hipkins (Minister), has released a statement broadly outlining what this means for employers and employees in these sectors.
Health and disability sector
The Order will be updated to require persons undertaking high-risk work in the health and disability sector to have had their first dose of the vaccine by 30 October 2021 and be fully vaccinated by 1 December 2021.
It is not yet entirely clear what will constitute 'high risk work in the health and disability sector', however, the Minister indicated that the following roles will be affected by the updated Order:
- General practitioners
- Community health nurses
- All other healthcare workers in sites where vulnerable patients are treated
The Minister also indicated that some non-regulated healthcare work may be covered by the updated Order, including, aged residential care workers, home and community support services, kaupapa Maori health providers and non-governmental organisations who provide health services.
A full list of affected healthcare workers is expected to be released in the coming days.
Most education workers will join the ranks alongside healthcare workers, MIQ workers, airport workers, aircrew and port workers and, too, will also be subject to mandatory vaccinations. Staff and support people who have contact with children and students at school and early learning services and providers will be required to have their first dose of the vaccine by 15 November 2021 and be fully vaccinated by 1 January 2022.
It appears that the Government has attributed a broad meaning to "school and early learning service and provider staff and support people who have contact with children and students". The updated Order is set to extend to home-based educators as well as all support people in schools and early learning services, including teacher-aides, administrators and maintenance staff and contractors.
This broad definition, together with the current lack of guidance, means the perimeters of the Order are unclear, particularly as it relates to the education sector. It is possible that other categories of workers may be inadvertently pulled into the ambit of mandatory vaccinations by virtue of their having contact with school children. People who are not necessarily employed by schools or early learning services and providers but come onto school grounds and have contact with children - such as parents who help with the school tuck shop or external charities and organisations who provide services in schools - may be inadvertently subject to mandatory vaccinations. Even tradies may be affected by the updated Order. There may be an argument that tradespeople who perform work at schools must be fully vaccinated and thereby, inadvertently, employers of tradespeople will have to require any employees performing work at schools to be fully vaccinated.
It is also unclear whether the Order will extend to persons who have contact with school children outside of school grounds, for example on school trips. This could then mean that museums and other places that host school trips may too be pulled into the ambit of the updated Order and require staff who are likely to have contact with school children to be fully vaccinated. The updated Order will also require schools and early learning services and providers to maintain a vaccination register from 1 January 2022. Secondary schools and kura will also be encompassed by the Order in the sense that they will be required to keep a vaccination register for students also from 1 January 2022. The Minister has indicated that the Order will allow secondary schools and kura to treat students who do not provide proof of vaccination as unvaccinated.
The Minster has also indicated that the Order will require all school employees in Auckland and other regions in Alert Level 3 to return a negative COVID-19 test result before they return to work onsite. Additionally, those employees who are not fully vaccinated in the period leading up to 1 January 2022 will be required to undergo weekly testing.
It is not currently proposed that the Order be extended to the tertiary education sector, however, the Government has left this door open, advising that consideration on this question is ongoing.
What does this mean for employers?
Despite the Government's announcement, there remains a lot of uncertainty around what employers will be able to do when it comes to workplace vaccination. Some roles will fit neatly into a box and clearly be covered by the Order. The majority of roles, however, fall into the 'grey area', and careful consideration will be needed. This lack of clarity can be daunting for employers.
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