Are your employees at a higher risk of contracting or transmitting COVID-19 at work than in the community? The government has released guidance indicating that this is the new threshold for mandating vaccination in a workplace.

As of Monday 4 April 2022, vaccines will no longer be mandated for workers in the education, police and defence sectors. This, alongside contact tracing being dropped, may mark the end of the “new normal”. But what does it mean for employers who have carried out their own risk assessments and decided that their employees must be vaccinated in order to mitigate the risk of COVID-19, and satisfy their obligations under the Health and Safety Act 2015 (Act)?

Public health advice

The public health justification behind the government retaining some mandates is that workers in those areas (health/disability, border/MIQ and prison sectors) are at a higher risk of contracting and transmitting COVID-19 while at work than they are in the community.

The government has stated that this should be the starting point for employers when assessing the risk posed by COVID-19 to their workplace. The following factors have been released to help determine whether the risk at work is higher than in the community:

• Is there a greater risk of the worker being exposed to new variants at work than in the community?
• Does the worker regularly, as part of their work, interact with people who are at greater risk of severe illness should they contract COVID-19?
• Does the worker regularly interact with people who are less likely to be vaccinated against COVID-19?
• Does the worker work in a confined indoor space (of less than 100m2) and involve close and sustained interactions with others (i.e. closer than 1m distance, for periods of more than 15 continuous minutes)?

Risk assessment review

The government has stated that in light of this guidance “employers should review their workplace health and safety risk assessments”. On a practical level, what does this mean and what is involved?

The first step of carrying out a risk assessment is to look at the new starting point: is an employee at a higher risk from COVID-19 at work than in the community? If the answer is no, then requiring them to be vaccinated is now unlikely to be justified. If there are other strong considerations pointing towards vaccination, for example, if employees are concerned about affecting immunocompromised family members, explore these through the risk assessment.

If the answer is yes, then vaccination may be justified and the risk assessment should proceed.

When carrying out a risk assessment an employer should look at the controls that are available to mitigate the risk of COVID-19 (such as masks, physical distancing, or the use of RAT tests) and assess whether these are enough to satisfy its obligations under the Act.

The general principles applying to risk assessments remain the same: a risk assessment should be role specific, it should take into account the circumstances of individual employees and employees should be consulted as part of the process and on the outcome.

Moving forward

The government has significantly raised the threshold for requiring an employee be vaccinated based on health and safety grounds. It is expected that this will cause a significant drop in mandatory vaccination within workplaces across the country. When reviewing risk assessments and the flow on effects, it is important to remember that employment obligations, including good faith, still apply. These should be kept in mind when implementing any change in the workplace.

Risk assessments are not a tool that can be completed once, and then left to collect dust until they need to be relied on. They are living documents and recent guidance is a timely reminder that they should be reviewed and updated in light of new information or guidance, especially considering the fluid nature of the issues COVID-19 presents.

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