As New Zealand moves to make vaccinations the cornerstone of New Zealand’s COVID-19 response under the COVID-19 Protection Framework, it is equally important that employers have a clear legal framework for the role which vaccinations will play in the workplace.  Therefore, it is welcome news to employers that the COVID-19 Response (Vaccinations) Legislation Bill was introduced into Parliament yesterday to help clarify how employers ought to balance their competing rights.

In this article, we walk you through some of the notable amendments and provisions of the proposed legislation and its potential impact on employers.

It is important to note that while the Bill will be fast-tracked through Parliament, it will undoubtedly be amended through the Parliamentary process.  We will provide a more detailed update on the final legislation.

The simplified vaccination assessment tool

The omnibus Bill provides a range of amendments to provide a legal framework which is more reflective of a highly populated country, and most significantly, prescribes an assessment tool for employers to determine work that must be performed by a vaccinated worker.  However, the Bill does not introduce the assessment tool regulations (which contain the wording and precise criteria for such assessments).  Michael Wood, Minister for Workplace Relations and Safety, has announced that the assessment tool will be available for businesses to use once regulations are issued in mid-December.

It is proposed that the tool will specify four key factors, at least three of which must be met before it would be reasonable to require vaccination 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.

Alternatively, the new Bill provides that employers can implement mandatory COVID-19 testing for workers instead of requiring a COVID-19 vaccination.

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.

The proposed amendments to Employment Relations Act 2000 provide for a 4-week paid notice period for termination if the work requires vaccination, but the employee is unvaccinated.  The termination notice will be cancelled if the employee is vaccinated during that period, unless cancelling the notice would unreasonably disrupt the employer’s business.  The Bill also amends the Employment Relations Act to provide for reasonable paid time off for employees to be vaccinated.

Amendments to the COVID-19 Public Health Response Act 2020

Outside of the simplified vaccination assessment tool, further amendments to the COVID-19 Public Health Response Act 2020 propose to broaden the COVID-19 orders to better reflect the new measures and intentions under the COVID-19 Protection Framework.

Importantly, an employer will be able to hold, store, use, or disclose personal information for the purposes of determining whether the individual is vaccinated or has been issued with a COVID-19 vaccination certificate.  However, it will be a criminal offence, with a maximum fine of $15,000, for businesses to hold, store, use or disclose this personal information for reasons outside of law enforcement purposes.

The Bill also introduces that enforcement officers can direct a person to produce evidence to demonstrate compliance with an order under the COVID-19 Public Health Response Act 2020.  These amendments alongside the recently enacted harsher penalties mean that employers ought to consider what COVID-19 safety protocols they need to implement to remain compliant under the new traffic light system.   Otherwise, employers could face a maximum criminal offence fine of $15,000.

Overall, these amendments are welcome news to many employers who have sought clearer guidance in these uncertain times.   Please contact us if you require further advice regarding how the new Bill may affect your workplace.