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VACCINATION ORDER: Are you an "affected person?" [UPDATED]

Updated: Nov 6, 2021



NOTE: This article has been updated to show the latest updates .


The latest Vaccination Order is out: however, many employers are miserably failing at interpreting it in good faith. Like, so miserably that I'm here at 10PM at night writing this blog post, to try and avoid a de ja vu of the first two Vaccinations Orders.


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.


Thirdly: This is a working document. If you work in one of these fields, please help me out by providing some tips and tricks in relation to interpretation. Honestly: I'm struggling a little with the medical jargon.


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


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.


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.


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


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 health service must be provided by at least one health practitioner (above).


The person must:

  • Work within 2 metres of that 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


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".


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 is a person employed or engaged to carry out work that includes going to the home or place of residence of another person (not being the home or place of residence of a family member) to provide care and support services. [REVOKED]


Location of work [REVOKED]

The first criteria is that the person is required to go to the home or place of residence of another person (not being the home or place of residence of a family member). Note that "a home or place of residence" includes a residential care facility, retirement village, and rest home.


If you are a care and support worker who works from your own home, or in the home or place of residence of a family member, you are not required to be vaccinated.


If you are covered by the Vaccination Order because you provide your cares at the home or residence of another person, you could seek to amend the terms and conditions of your employment, to the effect that you provide those cares from your personal home. This will require agreement from the family: however, it is a reasonable alternative to termination of employment.


Family Member [REVOKED]

The term “family member” is not defined in the Vaccinations Order, however, it is my view that it would be consistent with the nature of a 'family nominated carer' that they be considered “family members.”


This is because their employment rests solely on her status as being nominated by the family. New Zealand’s health and disability framework is designed to promote the inherent dignity of persons with disabilities, by recognising their individual autonomy and independence, including the freedom to make their own choices.


It is of relevance that the Human Rights Act 1993 prohibits discrimination of relatives of people with disabilities. The Human Rights Act 1993 defines a relative as any other person who:

  • is related to the person by blood, marriage, civil union, de facto relationship, affinity, or adoption;

  • is wholly or mainly dependent on the person; or

  • is a member of the person’s household.


Alternatively: if you are a family nominated carer, not employed by the family directly, you may want to consider talking to the family about having funding transferred to the family to allow you to seamlessly continue your employment in accordance with the family's wishes.


UPDATE: The Vaccination Order has removed the criteria of location of work family member.


Now, a care and support worker means a person employed or engaged to provide care and support services within a home or place of residence. Note that "a home or place of residence" includes a residential care facility, retirement village, and rest home.


It is my view that this cannot extend to care and support workers who are providing services from their personal homes: however, this will be a matter of statutory interpretation and legal debate.


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:

  1. 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

  2. providing mental health and addiction support services, or vocational and disability support services (see definitions below); or

  3. if the person has a disability, assisting the person to work in the community; or

  4. 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.


... I really hope you guys understand this better than me ...


9.1 Workers who carry out work at or for an affected education service


Group 9.1 covers workers over the age of 12 years who carry out work at or for an affected education service (including as a volunteer or an unpaid worker) and who:

  • may have contact with children or students in the course of carrying out that work; or

  • will be present at the affected education service at a time when children or students are also present.

An affected education service means:

  1. an early childhood service (other than a playgroup):

  2. a registered school:

  3. a hostel


1. Early childhood service

An early childhood education and care service means:

  • a free kindergarten that is an early childhood service whose licence permits no child to attend for a period of more than 4 hours on any day; and

  • any other early childhood service that is declared to be an early childhood education and care service by regulations made under the Education and Training Act 2020.


A playgroup (EXCLUDED FROM VACCINATION ORDER)

A playgroup means a group that meets on a regular basis to facilitate children’s play and in respect of which:

  • no child attends for more than 4 hours on any day; and

  • more than half of the children attending on any occasion have a parent or caregiver present in the same play area at the same time; and

  • the total number of children attending on any occasion is not greater than 4 times the number of parents and caregivers present in the same play area at the same time.


2. A registered school

A registered school means a State school, a State integrated school, or a private school.


3. A hostel

A hostel means a boarding establishment used mainly or solely for the accommodation of students enrolled at a registered school.


9.2 Providers of a home-based education services


A home-based education and care service means the provision of education or care, for gain or reward, to children who are under the age of 5 years, or who are aged 5 years but not enrolled at school, in:

  • the children’s own home; or

  • the home of the person providing the education or care; or

  • any other home nominated by a parent of the children; and

Includes the provision of education or care to any child of the person providing the service who is:

  • under the age of 5 years; or

  • aged 5 years but not enrolled at school


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.


Please please please don't email me asking me to repeat what's in this blog post. I have posted all I know. I don't want to be rude: I'm tired and exhausted and my health is deteriorating with stress. However, if you find an answer to the question, please post it in the comments section below: because if you have this question, someone else will too.