NOTE: This article has been updated to show updates to the Vaccination Order.
Many employers are miserably failing at interpreting the Vaccination Order in good faith. This article is designed to assist you in understanding how your role potentially fits within the Vaccination Order. However, my main piece of advice is:
Don't just take your employers word for it.
Firstly: engage in a good faith feedback process (see here for help). Your employer must provide you with sufficient information in relation to your status under the Vaccination Order. This means you should be asking for your specific categorisation under Schedule 2. Use this blog post to assist you in interpreting that information.
Secondly: if you are an "affected person", you may want to consider your ability to apply for an exemption or authorisation to allow you to continue to conduct certain work without the requirement of being vaccinated.
SIDENOTE: Wouldn't it be great if legal education was taught in High School, so that all people could learn how to read legislation that affects their rights and interests.
7.1 Health practitioners
UPDATE: The amendment means that this section only applies to "Health practitioners providing health services to patients in person."
This means that if you are able to conduct your role remotely, you may wish to seek to amend your role to allow you to continue work without providing health services to patients in person.
A health practitioner means a person who is, or is deemed to be, registered with an authority as a practitioner of a particular health profession.
An authority means a body corporate appointed, by or under the Health Health Practitioners Competence Assurance Act 2003, as the body that is, in accordance with this Act, responsible for the registration and oversight of practitioners of a particular health profession.
In looking at the authorities in respect of health professionals, it includes the following:
Chiropractic Board
Dental Council
Dietitians Board
Medical Sciences Council of NZ
medical Radiation Technologists Board
medical Council of NZ
Midwifery Council
Nursing Council of NZ
Occupational Therapy Board
Optometrists and Dispensing Opticians Board
Osteopathic Council
Paramedic Council
Pharmacy Council
Physiotherapy Board
Podiatrists Board
Psychologists Board
Psychotherapists Board
This means that, basically, a health practitioner for the purposes of the Vaccinations Order will be a person whose profession is overseen by one of the above practices.
7.2 Workers who carry out work where health services are provided to members of the public by 1 or more health practitioners and whose role involves being within 2 metres or less of a health practitioner or a member of the public for a period of 15 minutes of more
UPDATE: This group has been changed to: "Workers who are employed or engaged by a general practice or a pharmacy and whose role involves being within 2 metres or less of a health practitioner or a member of the public for a period of 15 minutes or more."
A person who falls under this category must be employed or engaged by a general practice or a pharmacy. This change significantly narrows the number of people captured under group 7.2, as previously it captured all workers who carried out work where health services are provided. This captured many third-party workers, including social workers, police officers, suppliers and salespeople, and others who might need to enter a hospital or healthcare setting as part of their role.
Secondly, if the person is employed or engaged by a general practice or pharmacy, the person must:
Work within 2 metres of a health practitioner; or
Work with a member of the public for a period of 15 minutes or more.
All three criteria must be established for an employee to fall into this category.
7.3 Workers who are employed or engaged by certified providers and carry out work at the premises at which health care services are provided
UPDATE: This group has been changed to: "Workers who are employed or engaged by a certified provider and who, as part of their ordinary duties, come within 2 metres or less of a health practitioner or a person to whom health care services are provided for a period of 15 minutes or more."
A person who falls under this category must work somewhere where a health service is provided to members of the public. A health service means a service provided for the purpose of assessing, improving, protecting, or managing the physical or mental health of individuals or groups of individuals
This person must also be employed, or engaged, by a certified provider. A certified provider is someone who has been provided written notice by the Director-General to provide health care services of any kind: in accordance with section 26 of the Health and Disability Services (Safety) Act 2001.
A person who purportedly falls into this category should be able to ask for the section 26 verification that the person is a "certified provider".
Secondly, if the person is employed or engaged by a general practice or pharmacy, the person must:
Work within 2 metres of a health practitioner; or
Work with a member of the public for a period of 15 minutes or more.
All criteria must be established for an employee to fall into this category.
This category is not a "fallback" for category 7.2: it specifically applies to people employed or engaged by certified providers.
7.4 Care and support workers
A care and support worker means a person employed or engaged to provide care and support services within a home or place of residence.
Care and support services
Secondly, you must provide care and support services. This means services that are funded by the Ministry of Health, a DHB, or ACC and provided to a person for the purpose of:
assisting the person to continue to live in the person’s home or in the community (such as personal care and household management services); or
providing mental health and addiction support services, or vocational and disability support services (see definitions below); or
if the person has a disability, assisting the person to work in the community; or
if the person has an injury covered by the Accident Compensation Act 2001, supporting the person’s rehabilitation from the injury or supporting them to achieve and sustain their maximum level of participation in everyday life.
Clarification to "providing mental health and addiction support services, or vocational and disability support services (see more below)"
Mental health and addiction support services means services that are funded under a funding agreement and that are provided to:
A person who has a mental health need or an addiction need for the purpose of assisting them to:
continue to live in their home or in the community (such as personal care and household management services); or
work or volunteer in the community; or
participate in activities in, and contribute to, their community; or
learn new skills to manage their lives and achieve overall well-being; or
maintain and develop social and support networks; or
a person with a mental injury covered by the Accident Compensation Act 2001 for the purpose of:
supporting their rehabilitation from the injury; or
supporting them to achieve and sustain their maximum level of participation in everyday life; but
does not include:
care and support services; or
vocational and disability support services; or
services provided by a health practitioner; or
services provided at a location other than the following:
the person’s home (including a residential care facility, a retirement village, and a rest home):
the person’s workplace:
an employer facility:
a community facility
Vocational and disability support services includes a support worker: who is an employee of an employer; and
whose work for that employer primarily involves providing support services; and
who, of the support services that the person provides, primarily provides vocational and disability support services.
If you are a care and support worker, providing care and support services to a person who resides in the same residence as you (as a family carer), follow my Facebook page as I'm expecting a judgment from the Employment on this by 17 August 2022. In this case, I've argued that such family carers cannot be interpreted as being included in the Vaccination Order.
Conclusion
This is a working document. If you are an expert in this field, please help me out by providing some tips and tricks in relation to interpretation.
If your employer has misinterpreted the Vaccination Order, I recommend you seek legal advice. You may want to contact Te Ara Ture. I am only one person and I am struggling to continue to take this work unpaid.
Legal AF Limited t/a Ashleigh the Advocate Help me, help others: your contributions allow me to continue creating substantial blog posts like these.
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