Our German Desk
Vaccine mandates have been the “hot topic” in the news recently. However, it has become clear that vaccines are not a silver bullet and relying on vaccination alone to address the risk of Covid-19 in your workplace may not be sufficient for the Health and Safety at Work Act 2015 (HSWA2015).
Vaccines undoubtedly form a key part of any Covid-19 related health and safety measures. However, the overarching focus on vaccination has overshadowed additional effective controls for minimising Covid-19. Failing to consider a range of measures may risk of breaching of your duties under the HSWA2015. Instead, businesses should be considering a suite of controls, which together, minimise the risk of Covid-19 and its consequences.
The Basics
A few key principles. If you are conducting a business or pretty much anything else, you are known as a person conducting a business or undertaking (PCBU) under HSWA2015.
A PCBU has some fundamental duties:
- It must ensure that health and safety of its workers while at work, and while carrying out the work.
- It must also ensure that the health and safety of others are not put at risk by that work.
- If there is a risk, it must eliminate that risk, or if it is unable to do so, minimise that risk.
These duties are all at the minimum but high standard of “reasonably practicable”. This standard requires a PCBU to weigh up all relevant health and safety matters including:
- the likelihood of the hazard or risk occurring; and
- the degree of harm that might result from the hazard or risk; and
- what a person concerned knows, or ought reasonably to know, about:
- the hazard or risk; and
- the ways of eliminating or minimising the risk; and
- the availability to suitable ways to eliminate or minimise that risk.
It is only when these factors have been taken into account that cost can ever be a consideration.
These obligations require engagement with workers and their representatives, and are broadly termed a risk assessment.
A PCBU must gain knowledge about all of these things, it cannot simply turn a blind eye. What a PCBU needs to do, is find out as much as it can about the risk of Covid-19, which includes how it transmits, the degree of harm, and the various ways of eliminating it or minimising it.
Doing nothing is not an option. A PCBU’s obligation is to prevent its workers from contracting or transmitting Covid-19 in the workplace or when carrying out work because the health outcomes for them can be poor.
What do we know about Covid-19?
The risk in workplaces is considered to be elevated. The Director General of Health advised on 28 October 2021 that:
“It’s a fact that in the outbreak in Auckland, and we’ve looked very carefully at where transmission has happened, and it’s almost entirely been within close contact settings, largely in the home but also in close contact within workplaces. So actually, people in workplaces that are indoor are much more at risk than people who may have contact with drivers or others who are going about their work.”
That statement alone should alert every PCBU that operates indoors of the need to carry out a careful risk assessment (if it had not done so already). The risk is also different regionally, but we have already seen that can change rapidly. A PCBU’s risk assessment now, may be quite different in 3 weeks’ time. It is a process that needs to be repeated or at least updated, and businesses should be ready to undertake revisions and roll out additional measures promptly.
We were advised from early 2020 that transmission of Covid-19 is by droplets. Transmission was occurring from close contact, particularly for any duration, and surface transmission. The controls we learned about in 2020 to minimise this were:
- Mask use was effective to prevent contracting and transmission;
- Reducing numbers of workers indoors to minimise close contact;
- Ensuring close contact was less than 15 minutes;
- Social distancing to avoid close contact, preferably at least 2m;
- Barriers;
- Frequent hand washing;
- Sanitising;
- Regular surface cleaning.
By all accounts, these were pretty effective when used together, and were credited with bringing Covid-19 under control before vaccinations. Correct mask use was spectacularly effective.
Enter the beast that is Delta, and now the possibility of Omicron. It is now widely accepted that aerosol transmission is possible, including through air conditioning systems. This why public health messaging has been that outdoor wide open spaces are good, airflow is good, and if you are in the car put the windows down. At the other end of the spectrum, poor airflow inside is higher risk, and that’s where most work is.
Surely Vaccination is enough – right?
Well, that’s where a PCBU needs to consider the information it has, and what information it ought to know.
The starting point should be the Ministry of Health and Covid-19 websites. However, just remember that their focus is on public health generally, they are not focused on the risk inside your workplace.
Unfortunately, those sources of information do indicate some controls that should be put in place but do not tend to say why or what you need to look at. The World Health Organisation provides some additional information, actually a lot of information, and it takes a bit of working through. There are other useful sources of information, particularly if you want to assess the effectiveness of vaccination such as the Office for National Statistics in the UK (ONS), and the Centers for Disease Control and Prevention in the US (CDC).
Knowing how Covid-19 is contracted, transmitted, and how harmful it can be, and what each control is effective at doing, allows a PCBU to decide upon a suite of controls that ensures the health and safety of its workers. That’s the duty.
So here are a few tips to get you started. We start with something that is really unhelpful. The World Health Organisation tells us that people are most infectious 2 days before they show any symptoms. So for two days people are rocking around blissfully unaware that they have Covid-19, and will probably continue to turn up to work until the symptoms are significant. Regular testing minimises that time lag.
How effective is the vaccine? It is well settled that the vaccine leads to better health outcomes for those who contract the virus, and shorter infectious periods. However, the statistics also underscore that people who are vaccinated are still able to be infected, and are still able to transmit Covid-19. The vaccination appears to reduce these possibilities, at least for a time, but it does not appear to prevent them.
In the context of a PCBU’s HSWA2015 duties, vaccination is significant in reducing the “degree of harm” to a worker who contracts Covid-19 at work, and reducing the risk that a worker will contract or transmit Covid-19. Significant, but not by itself a silver bullet!
Looking at Your Workplace and Work
Every workplace will be different, and a PCBU also needs to consider where its workers go for work, and think about the risks, and implement some controls.
Remember to go back to first principles about what you are doing. Covid-19 is a risk that can have serious health outcomes. Your duty is to eliminate the risk, and if it is not reasonably practicable to do so, to minimise the risk of your workers contracting or transmitting Covid-19 in your workplace or while they are at work.
There are also a range of risks, and possible controls, when looking at different area of your workplace, the work, and pinch points.
Working outside seems to be low risk, particularly when people are socially distanced. If they are in close proximity they should probably still have masks. In terms of transport, if workers are all going to work in the same vehicle, then there will be close contact inside the vehicle, likely for more than 15 minutes, limited airflow, and many surfaces, i.e. all of the things that we have learnt are prime means of transmission.
Working inside is tricky. If it is a high stud warehouse with the doors open and good airflow and few workers who are working separately the risk is not high. But contrast that with a normal stud workplace, with limited airflow through air-conditioning or natural means, and a lot of people, i.e. most offices. That risk is certainly higher than the warehouse.
Higher risks again are the places that people frequently, and not necessarily at the same time; bathrooms, kitchens, staff rooms, meeting rooms. All of these add surface transmission and are at higher risk because they have more people using them. They are usually enclosed, which reduces airflow. The more people that use these spaces, the higher the risk that one of them has Covid-19. If more people are in these spaces at the same time, then that lifts the risk even higher as people are now in close contact. If more people are in those spaces together for a reasonable duration, say more than 15 minutes, then it notches the risk up another level. Even use at different times creates surface contact, which again lifts the risk another notch.
While the public health advice has had a lot of focus on customer facing roles, and originally boarder workers, when there is community transmission a worker in a workplace that comes into contact with a large number of work colleagues, would not appear to be any safer than a worker working on a front counter engaging with the same number of customers. The current risk is close contact, not who the people are.
Hopefully we have given examples of the range of things that present higher or lower risk and the reasons for that.
Controls
Once you have assessed the degree of risk, that is when you need to focus on your controls. The warehouse example, depending on how often employees come into contact with each other could potentially be surface cleaning of common surfaces – counters, pick and pack tables etc, and mask use. The mask use could possibly be limited to when those workers are in close contact. You can consider different controls for each workplace and type of work, and do not forget how effective mask use has proven to be. Worksafe advises:
“Making sure workers have face coverings and wear them when required also helps businesses and services meet their Health and Safety at Work 2015 (HSWA) primary duty of care.”
At the other end of the indoor spectrum, meeting rooms pose a particular challenge. Generally, workers are going to be in close contact, as meeting rooms are not usually designed for the luxury of social distancing, and for a reasonable duration of time. Meeting rooms have surfaces, particularly tables but also chairs. Meeting rooms also usually have more limited airflow than an office generally, particularly an open plan office. Mask use, regular surface cleaning, leaving the door open and using a fan to increase airflow, barriers, limits on the number of people, limits on the duration of use, are all factors that would need to be considered.
Every workplace is different, and every workplace is likely to have pinch points that are higher risk, require careful consideration, and a set of controls to resolve. Importantly it is the suite of controls, not just vaccination, that will keep your people safe. Don’t forget the effective controls we learned to implement in 2020. They are still effective, and with vaccination are very effective!
What’s next or present for some workplaces
Testing requirements have been mandated for some workplaces for some time. However, testing requirements in non-mandated workplaces have been relatively sporadic.
That is likely to change with rapid antigen testing. New Zealand appears to have been slow to this party, and by all accounts it is less precise, but early detection is an effective control for minimising the risk of transmission in your workplace or from your work.
Beyond Delta, Omicron has raised its ugly head. It is said to be more transmissible with an alarming increase in daily infections in South Africa. It is far too early to know what it means but countries are already scrambling to limit travel.
All the more reason to ensure that your Covid-19 controls are robust, minimise risk, and extend beyond vaccination alone.
Watch this space.
If you have any questions about this subject, please get in touch with our Health & Safety or Employment team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.
