COVID-19 vaccination mandate: complicated for employers but great for employment lawyers

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New bill will make terminating a person’s employment on the grounds of vaccination status a lot more costly for employers

The Government has, with urgency, introduced a new bill into Parliament which will make terminating a person’s employment on the grounds of vaccination status a lot more costly for employers.

The COVID-19 Response (Vaccinations) Legislation Bill is expected to be made law this week, and will make major changes to current employment law in that:

If a worker’s employment is terminated because their role requires vaccination (by Order or as a result of a Health & Safety Risk Assessment) and the worker chooses to remain unvaccinated, employers now have a legal obligation to give the unvaccinated worker four weeks’ notice on pay that their employment will be ending.

These changes to the Employment Relations Act 2000 (ERA) are the result of the COVID-19 Public Health Response (Vaccinations) Order 2021 (the Order) which mandated that certain industrial sectors like border workers, health workers and persons employed in the education sector must be vaccinated against COVID-19. The Order imposed strict deadlines and a penalty for any employer that allowed unvaccinated staff to work in breach of the Order. 

The Order was simple in its application. For example, teachers captured by the Order were required to provide evidence that they had received the first of the two vaccinations by 15 November 2021. If, by the Government’s imposed deadline, the teacher could not show that they were vaccinated, then it was unlawful for an employer to allow them to perform the role for which they were employed, and as a result, a significant number of educators have had their employment terminated.

Foundational employment law principles state if an employee is ready, willing and able to fulfil the role for which they were employed, an employer is required to remunerate them in accordance with the terms of their employment. If, however, the employee cannot work, and is not ready or able to work, then the traditional legal approach is that the employer was not legally required to remunerate that employee. In applying this to the current situation, a teacher exercising their right not to be vaccinated was (as a result of the Order) neither ready or able to work, and the employer was not required to remunerate those staff and any subsequent termination could be on notice but unpaid. Whether employers followed this legally available course was up to them, but it was often the only economically viable choice for non-Government funded employers.

Had employers been empowered to determine how they would impose the Government’s mandatory vaccination order, employers would have been able to set the relevant dates by which workers had to be vaccinated and at the same time ensure that any unvaccinated staff member could work out their notice period. This approach is beneficial for a range of reasons, including that the staff member can earn their remuneration and the employer can receive the benefit of the staff members’ work.

The Government’s arbitrary imposition of the Order, and the subsequent amendments to the ERA, changes the law. It requires employers who dismissed staff as a result of the Order to pay an extra four weeks’ salary to an employee who, through no actions of the employer, are unable to work and/or contribute to the employer’s business.

The amendment to the ERA also requires an employer, who is not captured by the Order but has decided to impose mandatory vaccination in their workplace, to pay the four weeks’ notice period (or whatever notice period is recorded in the relevant employment agreement, whichever is the longer). In contrast to terminations resulting from the Order, an employer that introduces mandatory vaccination should pay affected staff their full entitlement, including payment of the relevant notice period. The distinction is that a termination in these circumstances is the result of the employer’s decision and not one imposed by Government.

For the vast majority of the last 13 weeks, educational facilities in the greater Auckland area have been in lockdown and not trading. Despite not receiving an income over that period, they now are required to pay an additional four weeks’ salary for each employee that is terminated as a result of the Order, even though the termination comes as a result of the Government’s direction, and the employee is neither ready or able to work.

In my opinion, the Government should compensate all employers an amount equivalent to the notice period that the employer is now required to pay to any employee terminated, as a result of the employer abiding by the Government’s vaccine mandate. This is not a cost already struggling businesses should have to front.

How can we help?

WRMK Lawyers has Northland’s largest team of employment law specialists. If you need some help or guidance, please give one of us a call or contact your usual WRMK lawyer for advice. You can view our Employment Law team here.

WRMK Lawyers takes all reasonable care to make sure that the information in this article is up-to-date and accurate at today’s date. It is necessarily general information and not intended as legal advice to be relied upon.

Our thanks to David Grindle for writing this article, a version of which was first published in the Northern Advocate on 27 November 2021.

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