LEGAL
Balancing privacy rights WITH HEALTH AND SAFETY CONSIDERATIONS IN THE REAL ESTATE SECTOR Louisa Joblin, Associate Commercial Lawyer, Rainey Collins
The Government’s COVID-19 Protection Framework, which came into effect at the end of 2021, contains new regulations and guidance for employers. Some sectors are now subject to vaccine mandates and will be required to keep records of their employees’ vaccination statuses.
While the real estate sector is not currently subject to a vaccine mandate, real estate agencies are encouraged to undertake a risk assessment to determine whether their business activities should be carried out exclusively by vaccinated workers on health and safety grounds. In this case, ‘workers’ include any person required to operate the business or service, which includes paid and unpaid individuals. Given many real estate roles are client-facing, health and safety risk assessments may conclude workers need to be vaccinated to operate in their roles effectively while ensuring that risks are kept to a minimum.
Vaccination Assessment Tool The Government has provided a Vaccination Assessment Tool (VAT), to assist employers in determining whether they can require work to be carried out exclusively by vaccinated workers. The VAT provides four criteria in relation to a particular role or job, and employers must grade each of these as either ‘Lower Risk’ or ‘Higher Risk’. The four criteria are: Does the worker work in an indoor space that is less than 100 metre2? Is it unreasonable for the worker to maintain one-metre physical distancing from other people? Is the worker in close proximity to any other person for more than 15 minutes?
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The Real Estate Institute of New Zealand
D oes the worker provide services to people who are vulnerable to COVID-19? Where an employer grades at least three of the four criteria as ‘Higher Risk’, the Government deems it reasonable to require a vaccinated person to perform the role.
Health and safety plans for real estate agencies It is strongly recommended that after undertaking a risk assessment or use of the VAT to assess the risk of workers, agencies establish health and safety plans with the assessed level of risk in mind. Records of workers’ vaccination status may only be taken and stored if worker vaccination is mandatory, or the information is material to the operation of an employers’ health and safety plan. It is important to remember that vaccination status is personal information per the Privacy Act 2020. As such, health and safety plans should address issues such as whether the agency needs to know workers’ vaccination status and, if so, whether the agency needs to store evidence of their workers’ vaccination status or can simply record it without evidence. Generally speaking, an approach should be taken which keeps the collection, use and storage of vaccination information to the minimum level required to comply with the health and safety plan.
