Health and Safety for Alert Levels 4 and 3

Here’s a safety update to all our essential businesses and services operating in level 4 (also other business that can operate at level 3).

Keeping your workers’ healthy and safe is vital to helping to look after front line workers and the public. Specific health and safety steps will vary between businesses, but here are some questions and answers to think about.

To start – some basics – what are my basic health and safety obligations?

All businesses must have systems and processes in place to:

  • comply with the rules around operating in the applicable level (for example, maintaining physical distancing, and requiring use of face coverings of customers and staff in certain cases).
  • minimise risks arising to the extent that physical distancing cannot be maintained so far as is reasonably practicable (for example using physical barriers such as screens, or regularly sanitising surfaces).
  • In level 3, more businesses can operate at 3 providing they can operate without close physical contact. Customers cannot come onto your premises – unless you operate an alert level 4 business.

Basic practicable steps (in both alert levels) include:

  • sanitising surfaces often
  • installing barriers at customer facing points (such as reception desks, and counters)
  • providing hand sanitiser for customer and worker use
  • ensuring physical distancing

Do my workers have to be vaccinated?

Regulations require that certain roles be only performed by vaccinated workers (for example MIQ workers, or government officials working at the border). These roles have been specifically identified in regulations.

If a role has not been specifically identified in regulations as one that can be only performed by a vaccinated worker, businesses may still decide to require the role to be vaccinated worker, but only after a specific risk assessment has been completed that considers:

  • the likelihood of workers being exposed to COVID-19 while performing the role, and
  • the consequences of that exposure on the worker and others (for example community spread).

Caution: This is an extremely sensitive area, and individual rights must also be taken into account and balanced (for example rights against medical treatment, or against discrimination on health or religious/ethical belief grounds). Specific advice should be sought if you are considering requiring a role to be performed by only vaccinated workers.

We are available to help guide you through steps you need to take.

Can my workers refuse to work ?

Some of your workforce may be uncomfortable with, or refuse to work in levels 4 or 3.

If a worker refuses work offered to them, the first step is to have a conversation with them to find out why. Some workers may have valid reasons for being anxious about working. For example, they may have health vulnerabilities.

Businesses are obliged to engage with their workers about a matter concerning health and safety, and consult with workers about risks (including infection risks) and the best way to mitigate them.

As an absolute last resort a worker does have the right (under the Health and Safety at Work Act) to refuse work, but only in extremely limited circumstances where there is a serious risk to that worker’s (or another person’s) health and safety arising from imminent or immediate exposure to a hazard.

The threshold is high, but the right may be reasonably exercised where your business has not put in place active controls to mitigate the risks of infection from COVID-19, or where the worker is particularly vulnerable.

That said, having discussions and engagement with your workers is important. If an employee makes themselves unavailable for work without reasonable grounds, you may consider whether they have abandoned their employment, or whether disciplinary action can be taken for failing to follow a reasonable instruction.

Remember, as an employer you must act only in a way that a fair and reasonable employer could do in all the circumstances, and again, you should seek specific advice if contemplating any of these actions.

Do I have to pay them?

If an employee tells you they are unavailable for work, you may be able to consider unpaid leave if you have made work available and your employee is unable or unwilling to perform that work. You must discuss leave arrangements with your employee in good faith and allow them to first use paid sick leave (if they are sick), or annual leave at their choice (you cannot require them to take annual leave). If they do not have any paid leave available, you may consider offering special paid leave for a short term while a longer term arrangement is agreed.

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