The passing of the COVID-19 Response (Vaccinations) Legislation Act 2021 (Act) on 25 November 2021 marks the legal shift in the next stage of New Zealand’s response to the COVID-19 pandemic.

This legislation will most likely be the most important legislation passed by Parliament this year for employers.  Potentially, because of the urgency in which it was passed, there were no major amendments to the Act as it was passed through Parliament.  We break down some of the key sections in our previous article here.

With the transition into the traffic light system confirmed for 3 December 2021, it is important that employers are aware of their legal obligations when operating under the new Framework.

In this article, we consider the recent updates to New Zealand’s legal framework and what employers ought to do to ensure they are ready for the traffic light system.


The COVID-19 Response (Vaccinations) Legislation

The simplified risk assessment

The new Act provides a simplified assessment tool for employers to determine work that must be performed by a vaccinated worker.  The Act does not introduce the assessment tool regulations (which contain the wording and precise criteria for such assessments), and we expect those regulations to be issued in mid-December.

The tool will specify four key factors, at least three of which must be met before it would be reasonable to require vaccination or mandatory testing for particular work:

  • Workers are in an area with less than 100m2 indoor space;
  • Workers work less than 1m apart from other people;
  • Workers are routinely near others for more than 15 minutes;
  • Workers provide services to people vulnerable to Covid-19.

The Act provides that employers have absolute discretion over deciding whether to conduct the risk assessment in accordance with the assessment tool.  Therefore, employers could opt to use a different risk assessment (such as WorkSafe’s guidelines) if the employer considers that the assessment tool does not accurately cover or reflect the risks present in their worksite e.g., in a corporate or office setting where there is no ventilation.

For employers who have already implemented their COVID-19 risk assessment, they remain valid, and the new process will not override risk assessments already completed under existing guidelines.


Testing and contact tracing strategy under the COVID-19 Protection Framework 

The Government has revealed its testing and contact tracing strategy for the COVID-19 Protection Framework.  Under the new Framework, regions at Red and Orange will focus on symptomatic testing and surveillance testing in high-risk settings, whereas regions at Green will see a greater focus on surveillance testing in the hope of quickly finding any new clusters of cases.

The Government has also announced following 1 December 2021, businesses will be able to directly source from authorised suppliers approved rapid antigen tests for use within their workforce.

The wider use of rapid antigen testing across the workforce is welcome news to employers who can help implement surveillance testing among their workforce to better protect their workers and customers against COVID-19.


Vaccination certificates in the workplace

The My Vaccine Pass is an official record of an individual’s COVID-19 vaccination status for use in New Zealand.

Where businesses decide to require people entering to have a My Vaccine Pass, they will be required to apply that vaccination requirement to both their customers and workers under the new Act.   Therefore, in essence, imposing a vaccination mandate for employees.  Accordingly, employers ought to undertake a risk assessment and consultation process prior to implementing a vaccination requirement for their customers.

However, businesses are not required to use a My Vaccine Pass under the Act, even close-contact businesses.  Using the My Vaccine Pass under the traffic light system does allow for greater operational freedom such as higher capacity limits.  Therefore, businesses ought to understand and consider the pros and cons prior to deciding to require people entering to have a My Vaccine Pass.

Overall, the speed at which the COVID-19 updates are dizzying, and employers ought to keep up to date with the most recent Public Health Orders to ensure that they do not get caught out.  If you have any questions about how you can hit the ground running when New Zealand transitions into the COVID-19 Protection Framework, please contact us.