Employer Obligations: Health and Safety with Covid-19

14 September, 2021 | Rachael Chandra

As an employer you may be confused as to what your Health and Safety obligations are to your staff, visitors to your premises/work sites and to any clients or customers your business serves.

In assessing these risks and your obligations, you will need to consider both the requirements the Government has laid out regarding mask wearing, your obligations under the Health and Safety at Work Act, your obligations to act in good faith with your employees and to meet the requirements of the Employment Relations Act and rules and the Privacy Act, which was updated in 2020.

Increased risk with the Delta variant

The SARS-CoV-2 virus that causes COVID-19 has in recent months undergone genetic mutations and has developed into a number of variants. One of those is the Delta variant, which has led to high infection rates and deaths globally. It was first detected in NZ in August 2021, as a result of which all of NZ has had to be put under various lockdown levels.
NZ, and in particular Auckland, has had a number of community cases, and experience has shown that the Delta variant raises different health and safety considerations.

What is the guidance on wearing masks at work?

For non-essential service businesses returning to work under either Alert Levels 3, or 2, there will be some concerns about how to manage risks associated with the Delta variant. One of the biggest considerations will be, whether an employer may require an employee to wear a face covering while at work – given face coverings are not mandatory for all workers.

This is especially so if a business is not specially listed in the Covid 19 Public Health Response (Alert Level Requirements) Order (No 11) 2021 (“Order No 11”), making the issue of what can and cannot be required of workers tricky to navigate.

These businesses should note that notwithstanding specific business types not being specified, both Order No 11 and the Detailed Table on Alert Levels provide helpful guidance as to which workers, depending on the nature of their work, should wear face coverings.

Generally, the face covering rule applies to all persons in roles that are carried out in parts of the premises that is open to the public, and which are customer/client facing.

What are the considerations when implementing mask wearing rules?

In terms of implementing these rules as mandatory within the employer’s business, and having such policies in place, the starting point is the employer’s duty of care to workers and other persons under the Health & Safety at Work Act 2015 (“HSWA”). The duty is to eliminate and minimise risks in the workplace so far as is reasonably practicable. Accordingly, in relation to Covid 19 and the Delta variant, employers are by law required to assess health and safety risks associated with the virus and implement measures to either minimise or eliminate risks. This obligation extends further than merely meeting the minimum Government requirements stated in the Covid guidelines.

This forms the basis on which rules around face coverings may be implemented in the workplace. In our view, it would be lawful and reasonable to implement face covering rules for certain employees, provided their roles and the nature of their work justifies it, and the employer has conducted a robust health and safety assessment on risks associated with Covid 19 and the Delta Variant, before implementing the rules. It would be prudent for employers to include employees in such an assessment, to understand their views on what they perceive as being risks, and how those can be managed.

Protect yourself and get advice first

Each workforce will raise different and unique considerations depending on the type of business involved. Employers are advised to take advice prior to implementing such rules, especially in relation to the different issues they may encounter if certain employees refuse to follow face covering rules. This is because, in addition to health and safety related duties, employers have duties under the Employment Relations Act 2000 (“the ERA”), including to act in good faith, fairly and reasonably.

Privacy Laws

Another significant issue an employer may encounter is whether it may collect information from employees about their vaccination status for the purposes of assessing health and safety risks in the workplace. Employers may be able to do this as part of discharging their duties of care under the Health and Safety at Work Act. However, again, each business is unique, and while collection and use of such information may be justified in some cases, it may not be in others.

In addition, employers must follow a process that is compliant with their obligations under the Privacy Act 2020, and the ERA when collecting such information.

It would be prudent for employers to obtain advice specific to their business, given the collection, storage and use of such information is a highly sensitive matter, and care must be exercised as regards the process by which this is done.

 If you require any assistance in relation to any of the above matters, such as updating employment policies or responding to privacy related employment issues, please contact Litigation Assistant, Mikayla Sagar on 09 837 6890 or email mikayla.sagar@smithpartners.co.nz.