Vaccination mandate continues to widen

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COVID-19 laws will further impact businesses

Over the past three days we have seen several key developments in COVID-19 employment law that will likely affect the future operation of your business. In this article we discuss the extension of mandatory vaccinations, a new requirement which will make terminating staff on the grounds of vaccination status a lot more costly, a new assessment tool for businesses, and some recent cases of interest.

Extension of mandatory vaccinations

With the introduction of My Vaccine Pass (the Pass) and the new traffic-light system on 3 December 2021, the Government has this week confirmed that they will be extending the scope of the vaccination mandates to include employees of businesses who have the option to use the Pass. The actual Amendment Order (which will apply to the COVID-19 Public Health Response (Vaccinations) Order 2021) (the Order) is yet to be made law.

Businesses who will need to use the Pass in order to open under all levels of the new system will be:

  • hospitality (unless they limit business to contactless takeaways)
  • event businesses
  • businesses who work at gatherings of more than 10 (e.g. weddings, funerals and parties)
  • close contact businesses (e.g. hairdressers, barbers and beauticians),
  • gyms, and
  • other large non-business gatherings such as churches or community groups.

Under the new mandate, employees of these businesses must:

  • receive their first COVID-19 vaccination by 3 December 2021, that is next Friday, and
  • receive their second COVID-19 vaccination by 17 January 2022.

This is unless the employee is medically exempt from vaccination.

If you are an employer and you think your employees will be captured by this new mandate,  there are some urgent steps you will need to take before 3 December 2021. Despite these being unusual times, you are still bound by the duty of good faith and must follow a fair consultation process with your employees. A fair consultation process will involve consulting with employees on:

  • which roles you consider are covered by the Health Order and why
  • how compliance with the Health Order will be monitored, and
  • how the organisation will deal with employees who do not to get vaccinated, including what redeployment options may be available, and ultimately whether they should be dismissed if they continue to decline to get vaccinated.

Due to this being an evolving and complex area, we recommend that you urgently seek legal advice on how best to manage your competing obligations to your employees and the requirements under this new law. We have a specialist team who are experts on COVID-19 and employment law and are happy to help.

Termination and four-week paid notice period

On Tuesday the Government, under 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 two major changes to current employment law:

  1. 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 at least 4 weeks’ notice on pay that their employment will be ending, and
  2. If a worker gets vaccinated or receives an exemption within that four week notice period, the employer will be obligated to reinstate the employee to their role, unless doing so would unreasonably disrupt the employer’s business.

These changes are likely to have damaging economic effects for businesses already struggling from the flow-on effects of multiple lockdowns and reduced tourism. Not only will businesses potentially have to pay an unvaccinated employee for a month who is unable to work, they will also have to pay a vaccinated person to undertake the role.

Assessment tool is coming for businesses

The Government, in an attempt to provide certainty to businesses not covered by the Order, will also be introducing an assessment tool in mid-December, which businesses can use to determine whether requiring vaccination for certain roles in their business will be reasonable.

The tool’s use will not be mandatory, but it will be one resource employers can use to determine whether the requirements of a certain role make it that vaccination is a necessary step.

The assessment tool is likely to ask four questions focusing on:

  1. whether the employee works in a small indoor space or a large indoor/outdoor space
  2. whether the employee works within one metre of other people
  3. whether the employee is in proximity to other people for more than 15 minutes at a time, and
  4. whether the employee works with people who are vulnerable to COVID-19.

Indications of a high-risk environment will have to be found on three of the four factors to make vaccination reasonable. The wording of the exact factors is yet to be released.

Cases of interest

Two cases have been determined recently by the New Zealand Courts which involve the intersection of employment law and COVID-19 vaccines:

Four Aviation Security Service Employees v Minister of Covid-19 Response*  

In this case four employees from Auckland Airport challenged the Vaccination Order that requires Aviation Security Service employees to be vaccinated on the grounds that it was a breach of their rights and was not legally made. The Challenge was dismissed.  The Court found the Order was made within the limits of the Government’s powers, despite the empowering provision making no reference to vaccination, as it helped to minimise the risk of outbreak or spread of COVID-19. While the Court also found that the Order limited the four employees’ rights to refuse to undergo medical treatment, they found this limit to be demonstrably justified and therefore a legal limit under the Bill of Rights, as vaccination contributed to minimising the risk of outbreak or spread.

WXN v Auckland International Airport Limited** 

In this case an employee was granted interim reinstatement to their role, pending a full determination of his personal grievance claims for unjustified disadvantage and unjustified dismissal. The decision to reinstate the employee was made on the basis that there was a weakly arguable case that the employee was not a person covered by the Order and there was an arguable case that Auckland Airport did not follow a consultation process of a fair and reasonable employer in dismissing the employee. This case highlights the importance of genuinely assessing whether each role in your business is covered by the Order and, if it is, carefully consulting with employees before their employment is dismissed.

The rules of the employment game are in constant flux as the Government tries to balance its public health and economic agendas. However, so far we have seen the Employment Authority and Court sticking very strongly to existing employment law principles of good faith and proper consultation. Employers need to move quickly, but fairly, in order to try and meet all of their obligations.

How can we help?

WRMK Lawyers has Northland’s largest team of employment law specialists. We are currently helping large and small organisations affected by the changing COVID-19 mandates. 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.

Footnotes

* Four Aviation Security Service Employees v Minister of Covid-19 Response – [2021] NZHC 3012 8 November 2021

**WXN v AUCKLAND INTERNATIONAL AIRPORT LIMITED [2021] NZEmpC 205 [23 November 2021]

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 Kezia Purdie for writing this article.


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