By: Amanda Douglas, Sarah Hood
With the COVID-19 Public Health Response (Vaccinations) Amendment Order (No 6) (Vaccination Amendment Order) and the new COVID-19 Public Health Response (Protection Framework) Order 2021 (Protection Framework Order) – which provides the legal basis for the Traffic Light system – employers are still finding themselves coming to terms with yet another set of rules. There is a certain complexity to the Orders, in particular the Protection Framework Order, that needs careful navigation.

Vaccination Amendment Order

The Vaccination Amendment Order, arguably the less overwhelming change, expanded the Groups of Affected Persons in the COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccination Order), has brought a greater group of workers within the mandated vaccination group to include the following:
  • Workers of a food and drink business or service
  • Workers who carry out work at gyms
  • Workers who carry out work at a permitted event, regardless of whether that work is carried out before people arrive at, or leave the permitted event
  • Workers of a close proximity business or service
  • Workers who carry out work for a tertiary education provider at a tertiary education premises that are located within the boundaries of the regions that are currently at Red under the Protection Framework Order
Significantly, the Government has since clarified that solely takeaway food and drink services are not ‘food or drink businesses or services’ for the purposes of the Vaccination Amendment Order and therefore workers of solely takeaway food and drink services are not subject to a vaccination mandate.
 
Practically, the above groups of workers were required to have had their first dose by 3 December 2021 and their second dose by 17 January 2021, in order to continue performing their roles.  

Nonetheless, employers still need to be mindful of their various obligations under the Vaccination Order (and its various amendments), the COVID-19 Public Health Response Act 2020 and Employment Relations Act 2000 (including its recent amendments relating to COVID-19 vaccinations). These obligations place a responsibility on employers to take active steps to ensure that they, and their employees, comply with the Vaccination Order. In particular, employers need to be mindful of their obligation not to let an affected worker undertake certain work unless they are vaccinated (or exempt or authorised). In short, employers must not sit back and leave it up to their employees to be vaccinated by 17 January 2022 in the belief that all will be well. Rather they need to think about how to deal with employees who have not yet and/or do not intend to be fully vaccinated by the mandated date.  This in itself, requires a careful process to lay the foundation to ensure options for dealing with those who do not meet the vaccination mandate requirements within the required timeframes.

Protection Framework Order

The Protection Framework Order introduces the ‘Traffic Light system’ and puts in place various public health measures, called ‘COVID-19 Provisions’. It legally establishes the guidance around use of vaccination certificates and which rules apply when regions are at different colour in the traffic light system.  The Protection Framework Order contains various iterations of COVID-19 Provisions. For instance, it contains both a 1-metre and a 2-metre distancing rule. What COVID-19 provisions apply to what businesses will, however, depend on firstly whether the relevant region is at Green, Orange or Red and, secondly, the kind of business or service in question.

A particular COVID-19 Provision will only apply if it is specified in the relevant ‘Active COVID-19 Response Schedule’. There are three active COVID-19 Response Schedules, one for each level of the Traffic Light system.  So, while there are a multitude of COVID-19 Provisions, only some will apply at each level.

Furthermore, different COVID-19 Provisions will apply to different kinds of businesses or services.  For instance, a ‘regulated business or service’ may be subject to different provisions than a ‘business or service’, even though both may be located in the same region and, therefore, subject to the same colour setting / schedule. Similarly, the COVID-19 Provisions that apply to a ‘gathering’ at Orange may differ from those that apply to an ‘event’ at Orange.  Given the complicated and cross-referenced definitions in the Protection Framework Order, determining what kind of business or service you are, is not straightforward.

Conclusion

The time between the introduction of the Vaccination Amendment Order and the Protection Framework Order and commencement has placed an immense amount of pressure of employers to both get their ducks in a row and consider how to deal with unvaccinated employees and/or ambiguous definitions. However, with the right guidance and expertise, systems and processes can be put in place to minimise risk and ensure compliance with obligations under the Vaccination Amendment Order and the Protection Framework Order. If you would like to speak to someone to clarify your obligations under these Orders and / or the steps you should be taking to ensure compliance with them, get in touch with Amanda Douglas.

 
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