Vaccination on construction sites

Yesterday afternoon, we hosted a webinar exploring a key issue for the construction sector navigating Covid-19: vaccination on construction sites.  Janine Stewart (Partner, Construction) moderated a thought-provoking session with panelists Chris Alderson (CEO, Construction Health and Safety New Zealand – CHASNZ), Travis Tomlinson (Partner, Construction) and Gillian Service (Partner, Employment).

While the Government has said that vaccination is key to remobilisation of our sector, the panel explored the challenges of putting that into practice within the contractual, legislative and regulatory framework we are operating under.

The key takeouts from the session included:

The Delta outbreak has focused the industry on a proactive approach to COVID-19 related risk:

This time around, the considerations differ with not only a focused rollout of a vaccine (which was not available during the first Alert Level 4), but also the advent of the more infectious Delta variant.  The Government has made it clear that vaccination is key to remobilisation of construction sites following this lockdown and the parties are ‘forward looking’ in terms of how to tackle the risk of transmission to their businesses, people and communities.  Parties are considering how to invest in this risk.  One approach is a ‘no jab, no access’ site policy.  However, there are challenges with this mandate given current vaccination levels and the existing legislative framework of the Health and Safety at Work Act 2015 (HSWA), the Employment Relations Act 2000 and the Privacy Act 1993.  These matters must be factored into decision making in the current context.

Mandatory vaccination? It’s not that simple

We traversed vaccination, and specifically whether a Principal or Contractor can, or even must, implement a ‘no jab; no access’ policy.  We spoke about contractual levers and commitments that may be relevant.  While a careful assessment of the contract must be undertaken, including a focus on the health and safety provisions to provide a safe working environment, the health and safety duties under the HSWA must also be considered.  A further question therefore arises as to not only whether you can restrict access, but if you must – a particularly pertinent question to ponder for projects located in a healthcare, or aged-care setting, or one within an operating environment such as a factory or retail extension.

Leadership is key

Strong leadership within sector organisations is the strongest tool the industry has currently, because there will be challenges to imposing a mandatory vaccination policy under the existing legislative framework.  PCBUs should look to facilitate and encourage vaccination by methods such as allowing time off to receive the vaccine and making information available to their staff.  As a further comment, the panel noted that a strict contractual approach to the current situation is unlikely to achieve the best result.  The approach must focus on consultation and collaboration between all parties to facilitate an optimal outcome that balances risk of transmission with practicalities (for example, the absence of an alternate, fully-vaccination labour source given the current border restrictions).  A further important discussion point is around the financial implications of a site lockdown, and where the costs would lie in the event of that occurring – we queried whether it would be reasonable for this risk to sit with only one party.

What roles can be compelled to vaccinate?

We explored the current health order requiring certain employees to be vaccinated.  The order is presently aimed at a narrow category of workers in the current context, which is predicated on the border being our greatest source of risk.  However, this is being reviewed and may soon be extended to healthcare workers as well, given the changing risk profile now that we have community transmission.  One just needs to look overseas to more drastic measures being taken on this front.  The question arises as to whether this will extend to other workplaces as well, such as construction workers in the high risk environments mentioned above.  This, in turn, raises the spectre of projects in those higher-risk settings being restricted to vaccinated workers.  A further consideration is monitoring of vaccination status, and the challenges with ongoing navigation of compliance. We considered ways to monitor vaccination status, and the consequences if compliance is not achieved.

PCBUs can undertake their own risk assessment

Having said that, any PCBU can and should undertake its own risk assessment – and it should be getting expert advice with full consideration of how the site operates.  Solutions should continue to be considered in a focused framework.

Where to from here?

The panel agreed with the Government’s assessment that vaccination is the key focus in the current context – and that there are no easy answers to the challenges the construction sector faces in this regard.  We do note that parties are empowered to carry out their own PCBU assessments.  The extent to which policies may encourage vaccination, at one end of the spectrum, or mandate at the other, turns very much on the facts of each individual setting, and the risk assessment carried out by the specific PCBU.  As an overarching principle, PCBUs should be striving to approach all issues from a ‘best of project’ lens.  A genuinely consultative approach is key for contractual, health and safety, and employment considerations.  Parties should be thinking about this as a risk investment decision: it’s a discussion about the time and cost implications of taking steps to reduce the risk of transmission and site lockdown versus the cost to people and business if transmission and/or lockdown does occur.

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