BRIEFING
POLICY DECISIONS: COVID-19 VACCINATION REQUIREMENT FOR
HIGH RISK WORK IN MANAGED ISOLATION AND QUARANTINE
FACILITIES AND BY PUBLIC SERVICE AGENCY WORKERS AT
AFFECTED AIRPORTS, AFFECTED PORTS AND AFFECTED SHIPS
Date:
16 April 2021
Priority:
Urgent
Security
In Confidence
Tracking
2021-3276
classification:
number:
Purpose
This paper seeks your decisions on policy matters needed for a COVID-19 Order to be issued
requiring that work that is high risk in Managed Isolation and Quarantine Facilities (MIQFs) and by
Public Service Agency workers (as defined in Schedule 2 of the Public Service Act) at affected
airports, affected ports and affected ships, be performed only by workers who have been
vaccinated, and your direction on whether any further work is required on additional support
mechanisms is required.
Recommended action
The Ministry of Business, Innovation and Employment recommends that you:
1
note legal advice has been provided by Crown Law on the approach to the Order
recommended in this briefing (attached as Annex One)
Noted
2
note that the Ministry of Health has advised that requiring that specified high-risk work only
be undertaken by vaccinated people is an appropriate measure to address the risk of
outbreak and spread of COVID-19, in response to the current pandemic
Noted
Order policy design choices
3
note that the approach to the Order recommended in this paper is based on the COVID-19
Public Health Response (Required Testing) Order 2020 (Required Testing Order)
Noted
4
agree that the Order recommended in this briefing will apply to high risk work performed at:
EITHER:
4.1
Managed Isolation and Quarantine Facilities (MIQFs) only
Agreed / Not agreed
OR:
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4.2
MIQFs and Public Service Agency workers (as defined in Schedule 2 of the Public
Service Act) interacting with international passengers, crew, their belongings, and
affected items at affected airports, affected ports and affected ships
Agreed / Not agreed
5
note further policy decisions will be sought in relation to high risk work performed in the
broader Border sector eg transport and health
Noted
6
agree that the Order will require that specified work can only be done by a vaccinated
worker from the end of April with an existing worker (employed on or before 30 April 2021)
having needed to have:
6.1
a minimum of their first vaccination by 30 April 2021, to continue performing
specified work from 1 May 2021
6.2
their second vaccination by 4 June 2021, to continue performing specified work from
5 June 2021
Agreed / Not agreed
7
agree that the Order will require that specified work cannot be performed by a new worker
(employed on or after 1 May 2021) who has not had:
7.1
their first vaccination before they commence performing specified work
7.2
their second vaccination within 35 days of commencing performing specified work
Agreed / Not agreed
8
agree that specified work will be all work performed by the regularly present workforce at
MIQFs and Public Service Agency workers (as defined in Schedule 2 of the Public Service
Act) interacting with international passengers, crew, their belongings, and affected items at
an “affected airport”, “affected port” or “affected ship” (scope reflecting decision on
recommendation 4):
8.1
including all workers whose primary place of work is at MIQFs, or who are
transporting people to/from MIQFs eg MIQF staff, Defence Force personnel, Police,
security guards, hotel staff and medical staff working at MIQFs
8.2
including all workers whose roles regularly require them to visit MIQFs eg MIQ HQ
or RIQCCs that may be required to visit MIQFs, and regular maintenance
contractors for MIQFs
8.3
including all workers whose roles do or are likely to regularly require them to visit
locations within affected airports, affected ports and affected ships where
international passengers, crew and their belongings or affected items have been
Agreed / Not agreed
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9
note that specified work would exclude the following:
9.1
workers who perform work at MIQFs, and locations within affected airports, affected
ports and affected ships where international passengers, crew and their belongings
or affected items have been on an unanticipated basis, which is necessary, time
critical and cannot be performed by a regular worker (eg unanticipated maintenance
work), unless they have to return to work at any of these places
9.2
workers who handle affected items within 72 hours of their removal from an MIQF,
affected airport, affected port, and affected ship and who “have contact” with
workers in MIQFs while they are both working (the groups recently added to the
Required Testing Order)
9.3
workers who need to enter an MIQF, affected airport, affected port, or affected ship
to preserve or protect person’s life, health or safety in emergency eg Police, Fire
Service
9.4
workers who are authorised or required by law to enter into an MIQF, affected
airport, affected port, or affected ship eg Ombudsman
Noted
10
agree that the Order provide that workers who perform work at MIQFs, and Public Service
agency workers at affected airports, affected ports, or affected ships where international
passengers, crew and their belongings or affected items have been on an unanticipated
basis must not return to work at an any of those places, unless authorised by the Chief
Executive of the Public Sector Agency responsible for the work (or their delegate) to enter
the place without being vaccinated
Agreed / Not agreed
11
agree that the Chief Executive of the Public Sector Agency responsible for the work (or
their delegate) should only be permitted to authorise a worker to enter the place without
being vaccinated (under recommendation 10) where:
11.1 the work to be performed is unanticipated, necessary and time critical work, which
cannot be performed by a regular, vaccinated worker
11.2 not performing the work would mean the MIQF, affected airport, affected port, or
affected ship could not operate safely and would need to cease operations
Agreed / Not agreed
12
note that workers excluded under recommendations 9.2 to 9.4 will still be encouraged to be
vaccinated in line with the Government’s Sequencing Framework, however this would not
be a mandatory requirement for those workers to perform work at a MIQF, affected airport,
affected port, or on an affected ship
Noted
13
agree that the Order would not apply to work performed at temporarily offline MIQFs
provided the facility has been deep cleaned or at least 72 hours has passed since it was
occupied by returnees eg facilities with no returnees, including where this is due to
maintenance work
Agreed / Not agreed
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14
agree that the Order provide that by the dates specified in recommendation 6:
14.1 a person conducting a business or undertaking (PCBU) who employs or engages
any person to carry out specified work for the PCBU, must ensure that the specified
work is only performed by vaccinated workers
14.2 workers may only perform specified work if they have been vaccinated
Agreed / Not agreed
15
agree that PCBUs will have obligations similar to testing under the Required Testing Order,
eg to notify workers of the requirement to be vaccinated, not prevent workers from getting
vaccination during work hours, mandatory use of Ministry of Health register
Agreed / Not agreed
16
agree that individuals have to provide information about their vaccination to PCBUs, as per
the Required Testing Order, in order to be considered vaccinated
Agreed / Not agreed
17
agree that breaching any of the obligations in the Order will be an infringement offence for
the purposes of section 26(3) of the COVID-19 Public Health Response Act 2020
Agreed / Not agreed
18
note that worker will be refused entry to a MIQF, affected airport, affected port, or affected
ship if their vaccination status cannot be confirmed (eg through presenting suitable
evidence or verification)
Noted
19
agree that there will not be any exemptions provided from the obligation that specified work
at MIQFs, and work carried out by Public Service Agencies at affected airports, affected
ports, or affected ships only be performed by vaccinated workers (other than the
authorisations regime proposed under recommendation 11)
Agreed / Not agreed
Information sharing
20
agree that, for the avoidance of doubt, the section 11 Order will authorise the matching of
information between the COVID-19 Immunisation Register and the Border Worker Testing
Register
Agreed / Not agreed
21
agree that, to enable employers/PCBUs to meet their obligations under the section 11
Order, the section 11 Order will authorise the sharing of vaccination status of workers who
are subject to this Order, or who were subject to this Order in the previous 30 days, with
their employers/PCBUs
Agreed / Not agreed
Further work on additional support mechanisms
22
note options for additional support mechanisms for workers who are not vaccinated are
provided in Annex Two
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Noted
23
note that section 11 of the Act would not empower the making of rules authorising or
requiring employers to give preferential treatment to employees who are unable to be
vaccinated when making redeployment and other employment decisions
Noted
24
indicate if you would like further advice on any of the options in Annex Two
Further advice required as indicated in annex Two / No further advice required
Human Rights issues
25
note the advice on human rights issues in this briefing
Noted
26
note the Minister for COVID-19 Response must take be satisfied that the approach to the
Order recommended in this briefing does not limit or is a justified limit on the rights and
freedoms in the New Zealand Bill of Rights Act 1990, as part of issuing an Order
Noted
Next steps
27
note that Parliamentary Counsel Office will expedite the drafting of an Order on receipt of
your decisions on this briefing and expects to be able to provide a draft Order early in the
week commencing Monday 19 April 2021 and a final Order by the middle of / late in that
week, subject to any issues raised in Ministerial consultation (required under the Act) or
agency consultation
Noted
28
note that the Ministry of Heath will provide a paper enabling the issuing of the Order
recommended in this briefing by the middle of the week commencing Monday 19 April
2021, including advice from the Director-General of Health on public health matters
Noted
29
note that the Minister for COVID-19 Response must consult with the Prime Minister,
Minister of Justice and Minister of Health prior to making any order
Noted
30
note the Ministry Health will be updating operational guidance (including the immunisation
Sequencing framework) to ensure that relevant provision are made for people required to
be vaccinated under the Order
Noted
31
note that further advice will be provided from the Border Executive Board agencies by 7
May 2021 on the recommended approach to requiring specified high risk work performed
by other workforces operating at the border (including by non-public sector workers eg
airlines, airports and ports workers, DHBs and Crown entities including MaritimeNZ and
CAA) can only be done by a vaccinated worker, including any proposed exemptions and
other issues for Ministers to consider such as the scope of work and workers impacted at
affected airports and affected ports
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Noted
32
indicate if you would like to discuss this briefing.
Wish to discuss / Do not wish to discuss
33
agree to refer this briefing to COVID-19 Vaccine Ministers, Border Ministers, the Attorney-
General and Ministers of Social Development and Employment, and Justice.
Agreed / Not agreed
Paul Stocks
Deputy Chief Executive, Labour, Science and
Rt Hon Jacinda Ardern
Enterprise, MBIE
Prime Minister
16 / 4 / 2021
..... / ...... / ......
Hon Chris Hipkins
Minister for COVID-19 Response
..... / ...... / ......
Hon Michael Wood
Minister for Workplace Relations &
Safety
..... / ...... / ......
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Background
1.
You met on Tuesday 13 April 2021 with Border Executive Board Chief Executives to discuss
your preferred approach to requiring that high risk work at the Border be performed only by
workers who have been vaccinated. This followed the provision of a draft Cabinet paper to
the Ministers for COVID-19 Response and Workplace Relations and Safety.
2.
You have indicated that:
a.
priority should be given to preparing a COVID-19 Public Health Order (s11 Order)
under the COVID-19 Public Health Response Act 2020 (the Act) that cover specified
work performed at Managed Isolation and Quarantine Facilities (MIQFs) and by Public
Service Agency workers at affected airports, affected ports, or on affected ships
b.
further advice should be provided on options for additional support mechanisms for
workers who are not vaccinated
c.
further advice should be provided on preparing a s11 Order that covers specified work
performed by other workforces operating at the Border.
3.
This briefing seeks your decisions on the first two points above. Next steps for the third point
are outlined in paragraphs 81 to 88 below.
9(2)(h)
Public Health rationale
6.
The Ministry of Health has advised that requiring that specified high-risk work only be
undertaken by vaccinated people is an appropriate measure to address the risk of outbreak
and spread of COVID-19 in response to the current pandemic. This is because there is a
risk that these individuals may be exposed to, and infected by, COVID-19 in the course of
their work. The key public health consideration is that vaccines offer a high degree of
protection for individuals who are vaccinated, alongside a range of other public health
measures designed to protect those vaccinated and others they have contact with. A worker
who has been vaccinated will have a very high likelihood that they will be protected from
serious illness or death. Evidence of the efficacy of vaccines in preventing person-to-person
transmission is still evolving, however, it suggests that the vaccine is also likely to be
effective in preventing wider transmission.
7.
It is also imperative that other public health measures (such as regular workforce testing, the
use of personal protective equipment and safe distancing) remain in place presently.
8.
A key consideration is how to define high-risk work, with input from border sector employers,
public health and infectious disease experts.
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9.
This paper proposes definitions for high risk work for MIQFs, which MBIE have developed in
consultation with MIQ Policy and Operational teams, MBIE Legal, Crown Law and PCO.
Other Border Executive Board agencies and the Ministries of Health and Justice have also
been consulted on the approach to these definitions.
Order policy design choices
10. The following policy design choices need to be made so that a s11 Order can be prepared:
a.
Scope of work to be covered in first Order
b.
What does vaccinated mean and when will a worker need to be vaccinated by?
c.
What is the definition of high risk work?
d.
Who is responsible for complying with the Order and what are the consequences for
non-compliance?
e.
Should any exemptions be provided for?
11. Officials have based the approach to the s11 Order recommended in this paper on the
COVID-19 Public Health Response (Required Testing) Order 2020. This is because that
Order provided a base for work that is considered high risk and an approach with
comparable duties on a person conducting a business or undertaking (PCBU) who employs
or engages any person to carry out specified work for the PCBU, and workers employed or
engaged by a PCBU.
Scope of work to be covered in first Order
12. The first decision Ministers need to make is whether the Order recommended in this briefing
will apply to high risk work performed at:
a.
Managed Isolation and Quarantine Facilities (MIQFs) only
OR:
b.
MIQFs and Public Service Agency workers (as defined in Schedule 2 of the Public
Service Act) interacting with international passengers, crew, their belongings, and
affected items at affected airports, affected ports and affected ships.
13. Border Executive Board Chief Executives recommend the broader scope for this Order,
which would apply to Customs, MPI and ImmigrationNZ workers interacting with international
passengers, crew, their belongings, and affected items at affected airports, affected ports
and affected ships.
14. The public health rationale for the broader application is that these workers all face
significant risks from interacting with persons arriving in New Zealand who may have COVID-
19. Requiring vaccination to perform this work will provide a high degree of protection for
individuals who are vaccinated, alongside a range of other public health measures designed
to protect those vaccinated and others they have contact with.
15. This scope would not apply to broader public sector workers eg MaritimeNZ, Civil Aviation
Authority and DHB workers (including AVSec workers) who are also interacting with
international passengers, crew, their belongings, and affected items at affected airports,
affected ports and affected ships. This is for pragmatic and implementation reasons because
further engagement is needed with those PCBUs to ensure that they are able to comply with
the requirements of an Order.
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16. The Ministry of Transport will provide further advice on policy decisions to be sought in
relation to high risk work performed in the broader Border sector as outlined in paragraphs
81 to 88 below. The Ministry of Health will provide input into this advice in relation to DHB
workers.
What does vaccinated mean and when will a worker need to be vaccinated by?
17. In considering what vaccinated should mean and what deadlines for vaccination are
recommended, current vaccination numbers for MIQF and public service agency workers
have been taken into account, as has progress with the “Educate, Expect, Support” approach
and the need to ensure there is an opportunity for workers to access vaccination.
18. MIQ data is that as at 6.00pm 15 April 2021 there were a total of 4,668 workers in the MIQF
workforce, of whom 470 (10 per cent) have not had their first vaccination, though at least 160
of those workers are booked for their first vaccination. However, an estimated 3,000 workers
in the MIQF workforce are still to have their second vaccination and there is a medical need
to allow for three weeks between vaccinations.
19. Public Service agencies (as defined in the Public Service Act 2020) also have 1495 workers
on the border who will be in the scope of this Order. This included the New Zealand Customs
Service, Immigration New Zealand and the Ministry for Primary Industries. Of those workers,
94 (6%) are unvaccinated
Existing workers
20. Consistent with public statements that high risk work at MIQFs will only be permitted to be
performed by a vaccinated worker from the end of April 2021, MBIE recommends that the
s11 Order require that no work at MIQFs and performed by other specified public service
agency workers should be permitted to be performed by an existing worker (employed on or
before 30 April 2021) who has not had:
a.
a minimum of their first vaccination by 30 April 2021, to continue performing specified
work from 1 May 2021
b.
their second vaccination by 4 June 2021, to continue performing specified work from 5
June 2021
21. This will provide a limited window for the small number of workers who have not yet had their
first vaccination to schedule that and will set a firm deadline for all workers to receive their
second vaccination. This will also allow for MBIE, Public Sector Agencies and other PCBUs
to have the necessary employment conversations with unvaccinated workers about whether
they will be vaccinated and, if not, what options are for redeployment.
22. From a public health perspective, providing one to two weeks’ flexibility around the 21 day
period between doses is prudent, in the event that an individual faced unforeseen
circumstances that prevented them getting a second dose on day 21. (However, we agree
that this is essentially an MIQ call, as they are the key employer). The effectiveness of the
vaccine is not compromised by a delay of up 36 days after the first dose.
23. These dates will require the Ministry of Health to prioritise vaccinations for MIQF workers
within those timeframes.
New workers
24. From a pragmatic and implementation perspective, there is a rationale for setting separate
timeframes for new workers employed on or after 1 May 2021. This will allow those new
workers to be employed and will provide a window for these workers to get both
vaccinations. However, the public health rationale for requiring vaccination of any workers
means that these workers should be required to have their first vaccination before
commencing high risk work.
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25. MBIE recommends that that the Order will require that specified work cannot be performed
by a new worker (employed on or after 1 May 2021) who has not had:
a.
their first vaccination before they commence performing specified work
b.
their second vaccination within 35 days of commencing performing specified work.
26. This will replicate the 35 day window for existing workers to get their second vaccination.
From a public health perspective, this approach is reasonable as while the vaccination
course will not be complete at the time these workers start specified work, they have begun
the process and there is a clear intent to be fully vaccinated. The vaccine provides an
additional layer of protection, in addition to other public health measures that should continue
to be taken.
What is the definition of high risk work?
27. The COVID-19 Public Health Response (Required Testing) Order 2020 covers the following
workers who perform work at MIQFs:
a.
Workers at managed quarantine facility
b.
Workers who transport to or from managed quarantine facility persons required to be in
isolation or quarantine under COVID-19 order
c.
Workers at managed isolation facility
d.
Workers who transport to or from managed isolation facility persons required to be in
isolation or quarantine under COVID-19 order.
e.
Persons (other than excluded airport persons) who could spend more than 15 minutes
in enclosed space on board aircraft that arrives from location outside New Zealand
f.
Airside government officials (other than excluded airport persons), including (without
limitation) personnel from Immigration New Zealand, New Zealand Customs Service,
Aviation Security Service, or Ministry for Primary Industries
g.
Airside district health board workers (other than excluded airport persons)
h.
All landside workers from Public Service Agencies and DHBs (other than excluded
airport persons) who interact with international arriving or international transiting
passengers
i.
Persons (other than excluded port persons) who spend more than 15 minutes in
enclosed space on board affected ship
j.
All other port workers from Public Service Agencies and DHBs(other than excluded
port persons) who interact with persons required to be in isolation or quarantine under
COVID-19 order.
28. MBIE considers that these groups of workers provide a reasonable starting point for
identifying who should be required to be vaccinated to perform work at an MIQF, affected
airport, affected port, or affected ship, with a number of minor clarifying inclusions or
exclusions, based broadly on whether the worker is regularly performing work at any
location.
29. MBIE recommends that the s11 Order should apply to the following groups of workers:
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a.
all workers whose primary place of work is at MIQFs, or who are transporting people
to/from MIQFs eg MIQF staff, Defence Force personnel, Police, security guards, hotel
staff and medical staff working at MIQFs
b.
all workers whose roles regularly require them to visit MIQFs eg MIQ HQ or RIQCCs
that may be required to visit MIQFs, and regular maintenance contractors for MIQFs.
c.
All workers from Public Service Agencies and DHBs whose primary place of work is, or
is likely to become (e.g. via rotation), an affected airports, affected ports, or affected
ships.
d.
All workers from Public Service Agencies and DHBs whose roles regularly require them
to visit affected airports, affected ports, or affected ships.
30. MBIE recommends that the s11 Order should exclude (ie not apply to) the following groups
of workers for the following rationale:
a.
Exclude workers who perform work at MIQFs, and locations within affected airports,
affected ports and affected ships where international passengers, crew and their
belongings or affected items have been on an unanticipated basis, which is necessary,
time critical and cannot be performed by a regular worker (eg unanticipated
maintenance work), unless they have to return to work at any of these places.
Rationale: these workers could not have anticipated that they would need to perform
work at these places, therefore would not necessarily have been vaccinated, and
PCBUs could not have anticipated the need for these workers.
However, if such a worker needs to perform further work at these places, they should
be required to be vaccinated or in limited circumstances an exemption could be
granted (see discussion in paragraphs 34 to 36 below).
b.
Exclude workers who handle affected items (eg rubbish and laundry) within 72 hours of
their removal from an MIQF, affected airport, affected port, and affected ship and who
“have contact” with workers in MIQFs while they are both working (the groups that will
be included in the Required Testing Order from 21 April 2021).
Rationale: Public health advice is that the relative risk of exposure for people who do
not enter MIQFs themselves is low. Given that people who work at MIQFs, affected
airports, affected ports, or affected ships will be vaccinated, the additional risk
presented by face-to-face contact is relatively low, assuming that other public health
measures (such as safe physical distancing, hand hygiene etc) are also adhered to.
c.
Exclude workers who need to enter an MIQF, affected airport, affected port, or affected
ship to preserve or protect person’s life, health or safety in emergency eg Police, Fire
Service.
Rationale; While some of these workers are prioritised for vaccination, if they need to
enter these places to preserve or protect a person’s life, health or safety in emergency,
then there should not be consequences for either PCBUs or workers if they are not
vaccinated.
d.
Excluding workers who are authorised or required by law to enter into an MIQF,
affected airport, affected port, or affected ship eg Ombudsman.
Rationale; Public health advice is that for these rare cases, it is reasonable to rely on
other public health measures including use of personal protective equipment. This also
recognises the special statutory responsibilities of the Ombudsman.
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Approach to workers who enter MIQFs, affected airports, affected ports, or affected ships on an
unant
icipated basis, who have to return to work at those places
31. Paragraph 30.a recommends that a s11 Order should not apply to workers who perform work
on an unanticipated basis, which is necessary, time critical and cannot be performed by a
regular worker (eg unanticipated maintenance work), unless they have to return to work at
any of these places.
32. This is intended to apply in limited circumstances, to reflect the fact that the worker could not
have anticipated that they would do that work and it is not clear that they would have been
prioritised for vaccination.
33. Once the worker has performed work at these places, they should be eligible for vaccination
and can be prioritised. However, we do not consider these workers should be required to be
vaccinated to perform future unanticipated work.
34. To ensure the limited exclusion is not over-utilised, the Order is recommended to provide that
workers who perform work at these places on an unanticipated basis must not return to work
at any of those places, unless authorised by the Chief Executive of the Public Sector Agency
responsible for the work (or their delegate) to enter the place without being vaccinated.
35. To ensure these authorisations are limited to where these are genuinely essential, an
authorisation should only be permitted to granted where the Chief Executive of the Public
Sector Agency responsible for the work (or their delegate) is satisfied that:
a.
the work to be performed is unanticipated, necessary and time critical work, which
cannot be performed by a regular, vaccinated worker
b.
not performing the work would mean the MIQF, affected airport, affected port, or
affected ship could not operate safely and would need to cease operations
36. Providing the authorisation power to the Chief Executive of the Public Service Agency (or
their delegate) will help ensure multiple entries by these workers are limited to where it is
genuinely essential and will ensure significant oversight. This authorisation power is
expected to only be used where the worker needs to return in a relatively short period of time
after initially entering these places eg where a follow-up visit is needed and the worker has
been unable to be vaccinated in the intervening period.
37. From a public health perspective, the preferred approach would be that all MIQFs, affected
airports, affected ports and affected ships should, as a first call, have contracts with
‘preferred providers’ covering a range of trades/contingences (as a ‘just in case’). Where
there are such established relationships, provision could be made for nominated staff from
these groups to be vaccinated as a contingency. Where there are unanticipated groups that
fall outside of these plans – in very exceptional circumstances, from a public health
perspective it would be reasonable to provide tightly defined authorisation provisions apply in
limited circumstances, as a backstop..
Approach to temporarily offline MIQFs
38. In limited circumstances, a MIQF may be temporarily offline ie not occupied by any
returnees, but would still be considered to be a MIQF. This is most likely to be where
maintenance work is occurring or it is uncertain if a MIQF will continue to be used.
39. For the avoidance of doubt, MBIE recommends that the Order should not apply to work
performed at temporarily offline MIQFs provided the facility has been deep cleaned or at
least 72 hours has passed since it was occupied by returnees.
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40. These timeframes and conditions should mean the health risks of transmission of COVID-19
at these MIQFs has reduced to the extent that there is no longer a public health rationale for
requiring that work at the MIQF only be performed by vaccinated workers.
Operational implications and implementation
41. MBIE (MIQ), other Public Sector Agency responsible for specified work and Ministry of
Health will need to work closely together to operationalise the proposals above. The
inclusion of all anticipated (regular) workers has the potential to extend the scope of the
current vaccination programme and requires Ministry of Health to prioritise vaccinations for
these groups within the timeframes proposed. The distinctions drawn between anticipated
(regular) workers and unanticipated workers will have some challenges in practice, and will
require affected places’ sign-in processes and testing/immunisation registers to align
appropriately.
Who is responsible for complying with the Order and what are the consequences for
non-compliance?
42. The s11 Order will need to specify who needs to comply with it and the consequences for
non-compliance.
43. Based on the approach in the Required Testing Order, it would be appropriate to place
obligations to comply with the s11 Order on both PCBUs and workers. There are options to
restrict the obligations to comply to one party or the other, however these are less likely to
reinforce the responsibility that both PCBUs and workers collectively have to minimise the
risk of COVID-19 transmission.
44. MBIE recommends a comprehensive approach be taken to reinforce the role that both
PCBUs and workers have in preventing the risk of COVID-19 infection. This would involve
the Order providing that by the dates specified in paragraph 0 above that:
a.
a person conducting a business or undertaking (PCBU) who employs or engages any
person to carry out specified work for the PCBU, must ensure that the specified work is
only performed by vaccinated workers
b.
workers may only perform specified work if they have been vaccinated.
45. To support this, MBIE considers it is appropriate that the s11 Order place obligations on
PCBUs and workers similar to under the Required Testing Order. This would include
requiring that:
a.
PCBUs notify workers of the requirement to be vaccinated
b.
PCBUs not prevent workers from getting vaccination during work hours
c.
PCBUs record vaccination status in Ministry of Health register
d.
workers provide information about their vaccination status to PCBUs.
46. Under s26(1) of the Act, a person commits an offence if the person intentionally fails to
comply with a COVID-19 order. In addition, s26(3) of the Act provides that an Order may
specify that breaches of obligations in an Order are infringement offences.
47. MBIE recommends that breaching any of the obligations in the Order should be an
infringement offence for the purposes of section 26(3) of the Act. This will enable a
proportionate enforcement approach to be taken to ensuring the obligations in the Act are
complied with.
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48. MBIE has informed WorkSafeNZ that Orders are intended to be issued which will place
obligations on PCBUs, as WorkSafe are leading the engagement with PCBUs on their
compliance with obligations under Orders. In addition, the Public Service agencies will need
to ensure it has assurance systems in place to ensure that MIQFs, affected airports, affected
ports, or affected ships and all parties they contract to provide services at these locations
have systems in place to promote compliance with the obligations in the s11 Order.
Consequences and implementation of above compliance approach
49. Once a s11 Order is in place, this will mean that workers will be refused entry if their
vaccination status cannot be confirmed (eg through presenting suitable evidence or
verification). Public Service Ageencies will ensure clear communications of this expectation
to sites and workers.
Should any exemptions be provided for?
50. A limited power for authorisations has been identified at paragraphs 34 to 36 above for
workers who perform work at MIQFs, affected airports, affected ports, or affected ships on an
unanticipated basis to be authorised by the Chief Executive of the Public Sector Agency
responsible for the work, to perform that work where they have not been vaccinated.
51. While there are a number of reasons why workers may not be vaccinated, some of which
may raise human rights issues (discussed at paragraphs 66 to 70 below), allowing for
exemptions in these circumstances would not be consistent with the public health objective
of minimising the risk of COVID-19 transmission to the community and particularly close
contacts of workers performing work at MIQFs, affected airports, affected ports, or affected
ships.
52. MBIE therefore recommends that the s11 Order should not provide any ability for exemptions
to be provided from the obligation that specified work at MIQFs, affected airports, affected
ports, or affected ships only be performed by vaccinated workers (other than as proposed for
workers who perform work on an unanticipated basis).
Information sharing
Ministers have indicated that your preferred approach is to require that high risk work at the border
be performed by only workers who have been vaccinated
53. Ministers met on Tuesday 13 April 2021 with Border Executive Board Chief Executives to
discuss your preferred approach to requiring that high risk work at the Border be performed
only by workers who have been vaccinated. To know how well we are achieving this goal,
employers/PCBUs need to better understand which border and MIQF workers have and
haven’t been vaccinated.
To support effective implementation of the proposed Order and the COVID-19 Immunisation
Programme the government and employers/PCBUs need to know who has and hasn’t been
vaccinated
54. The Border Worker Testing Register (BWTR) is the most comprehensive database of who is
part of the border and MIQF workforce. It is currently legally possible for the Ministry of
Health to access the information from Border Worker Testing Register for the purposes of the
Immunisation Programme. However, the Ministry of Health has also been contacting
employers and PCBUs to ask for permission and seek information directly in order to be
transparent.
55. As part of the Immunisation Programme, we currently seek express consent from border and
MIQF workers to share their vaccination status with their employer/PCBU. Vaccination
status, and whether they have given consent for their vaccination status to be shared with
their employer/PCBU, is captured in the CIR.
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Not all MIQF and border employers/PCBUs have a complete picture of the vaccination status of
their
workers
56. Current practice is that if an employee does not consent to their information being shared
with their employer/PCBU, then the employer/PCBU will ask the employee directly to confirm
their vaccination status. If the employee refuses to share this information, they are treated as
though they have not been vaccinated.
Using the section 11 Order to authorise data matching and sharing information on vaccination
status of workers will help employers and PCBUs to meet their obligations under the proposed
Order
57. With the changes to the BWTR (making it mandatory for all PCBU to use the Register, and
the Ministry of Health having the ability to monitor the BWTR) and the proposed section 11
Order, officials recommend using this opportunity to make it explicit in the Order that we are
authorised to match data from the Border Worker Testing Register with the COVID-19
Immunisation Register (CIR) to proactively identify who should be vaccinated. This is
currently legally enabled through Information Privacy Principles.
58. Officials recommend also using the section 11 Order to authorise the sharing of vaccination
status of workers (who are subject to this Order) with their employers/PCBUs. This would
enable employers/PCBUs to have a more accurate understanding of the vaccination status
of their workforce, and manage their obligations under the proposed Order, in a more
efficient way.
59. Creating a specific clause in a s11 Order could overcome any issues with how information
has previously been collected, and provide a firm statutory basis for the kind of information
sharing required going forward to indicate who has and hasn’t been vaccinated at the border.
There are risks to be managed
60. There is a chance that the creation of a broad authorisation to share the vaccination status of
workers with their employers/PCBUs could lead to higher rates of inappropriate disclosures.
This is because the explicit consent process removes ambiguity about intent.
61. Given the dynamic nature of the workforce that will be subject to this Order at any point in
time, there is a chance that some workers will have their vaccination status disclosed despite
the provisions in the Order not directly applying to them at a specific point in time. To
mitigate some of this risk, officials recommend a time limitation of being subject to the
proposed section 11 Order in the last 30 business days.
Further work on additional support mechanisms
62. Ministers requested that advice be provided on options for additional support mechanisms for
workers who are not vaccinated, including support that can be provided by the Ministry of
Social Development. Annex Two summarises the options identified by officials, including
pros and cons of those options. Annex Two provides space for Ministers to indicate if you
would like further advice on any of those options.
63. Advice was requested on whether preference can be given for redeployment or other support
if a medical practitioner certifies a worker is unable to be vaccinated (as a version of an
exemption regime).
64. 9(2)(h)
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9(2)(h)
Human rights assessment
s 9(2)(h)
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s 9(2)(h)
Next steps
73. Following your decisions on the policy matters in this briefing, Parliamentary Counsel Office
will expedite the drafting of an Order. The process for issuing an Order would then involve:
Stage
Indicative timeframe
Owner
Policy briefing complete
Friday 16 April
MBIE
Policy decisions signed
Friday 16 April
Minister’s Office
Drafting instructions to PCO
Monday 19 April
MOH Legal
PCO provide draft Order
Tuesday 20 April
PCO
PCO, MBIE and MOH undertake
PCO/MBIE/MOH
Tuesday 20 April
agency consultation on draft Order
Advice to Minister’s Office to
MOH Policy
Tuesday 20 April
support consultation
Ministerial consultation on draft
Minister’s Office
Order (with Prime Minister,
Tuesday 20 – Wednesday 21
Ministers of Health and Justice at
April
minimum)
PCO finalise Order for Ministerial
Wednesday 21 – Thursday
PCO
signing
22 April (signature version
provided by COB 22 April)
Final advice from the Director-
MOH Policy
General of Health and
Friday 23 April
recommendation to sign Order
Minister of COVID-19 Response
Tuesday 27 April (received
Minister’s Office
signs Order
by MO 23 April)
PCO gazette Order
Tuesday 27 April
PCO
Order takes effect
By Friday 30 April
n/a
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Approach to requiring vaccination of broader Border sector workforces
74. The scope of the proposed Order is limited in its application to high risk work carried out at
MIQ facilities (irrespective of who conducts that work), and high risk work performed by
Public Service Agencies at the Border.
75. Further work is required that considers the need for an Order to apply to other workforces
operating at the Border. This covers: DHBs, Crown Entities (including MaritimeNZ and
CAA/AVSEC, and the majority of the transport border workforce which is privately employed
(including Ports, Port Logistics companies, airlines etc).
Rationale for not including Crown entities now
76. The Ministry of Transport (MoT) advises that it is comfortable with Maritime NZ and CAA
workforces being covered by the requirement, but had concerns about their ability to comply
with a 30 April 2021 deadline.
77. Both agencies put forward longer lists of eligible people for vaccination, than have been
prioritised to date. This was agreed with health officials, and gave priority to staff performing
roles with frequent exposure/higher-risk, over those who may go on a ship more sporadically
for example.
78. While it may be possible to have these staff vaccinated, we note that should they have
situations where staff are unable or unwilling to be vaccinated, due to their small size, it may
not be practical to respond in the time available.
79. We have engaged with both organisations and they are actively working through their
remaining staff being vaccination and to ensure that appropriate steps are being taken in
regard to any staff who are unable or unwilling to be vaccinated.
80. We consider a 17 May 2021 requirements date (for their first vaccination) for these
organisations would be workable.
Approach to requiring vaccination in remainder of broader Border sector
81. The Ministry of Transport (MoT) will provide further advice by 7 May 2021 on the
recommended approach to requiring specified high risk work performed by the non-
government border workforce (predominantly the transport sector eg airlines, airports and
ports workers) can only be done by a vaccinated worker, including proposed exemptions and
other issues for Ministers to consider.
82. Overall, the non-government border workforce (predominantly the transport sector) has been
positive about the vaccine programme and encouraging uptake amongst its workforce under
the Educate, Expect, Support approach.
83. Qualitative feedback from the sector to date suggests overall uptake has been good, but
MoT has limited visibility of data to confirm this at this stage. This is for two main reasons:
a.
Logistical issues have meant a range of employers experienced delays with staff being
booked for vaccination; consequently, some now remain comparatively early in the
staff engagement process
b.
Employers were reliant on vaccination status information being easily obtainable from
the CIR. Changes in process meant most employers were not prepared when they
were instead requested to obtain vaccine status information through individual
discussions with employees. While work continues to enable information to be sourced
from the CIR, this has not proved viable for the sector to date.
84. A further challenge has been the recent introduction of QFT, and an increase in the number
of staff eligible and prioritised for vaccination. They has been some confusion around
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eligibility, and different approaches adopted by different DHBs. While we understand that
most air crew will have had access to vaccination prior to the commencement of QFT travel,
this is difficult to report on at this time.
85. Many of the logistical issues have now been resolved, though MoT continues to hear
unverified reports of significant numbers of eligible port workers experiencing difficulties
being booked for vaccination. We are working closely with MoH and DHBs to escalate and
resolve these matters as they become apparent.
86. MoT has asked all known PCBUs to engage with staff, or contact MOH, to obtain information
about vaccination status. This is due to be provided to MoT by Monday 19 April 2021, and
MoT will report on this information to Ministers Hipkins and Wood on Friday 23 April 2021.
87. MoT does, however, expect there will be some gaps in information (given there is no legal
obligation for transport sector PCBUs to report to MoT) and a need for follow up.
MoT propose direct engagement with employers to be completed by 30 April. The focus of
this will be: to fill any information gaps; to understand any situations where employer risk
assessments indicate that work that falls under the required testing order, may not require
vaccination and the reasons for this; and to understand the transitional implications, should it
become a requirement that this work must be performed by vaccinated persons. This will
include giving consideration to the need to require staff involved in supporting QFT flights to
be vaccinated.
88. MoT plan to report to Ministers by 7 May 2021 on the scope of high-risk work that may need
to be covered by an Order.
Annexes
Annex One: Crown Law Advice – Legally Privileged
Annex Two: Options for additional support mechanisms for workers who are not vaccinated
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9(2)(h)
Annex Two: Options for additional support mechanisms for workers
who are not vaccinated
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