Yesterday, the Government announced a range of measures to help protect workplaces and workers from the negative consequences of COVID-19. The intended measures will provide many employers with certainty that following robust health and safety risk assessments, they will be able to require certain roles to be performed by fully vaccinated workers.
One of the key measures announced is the vaccine mandate. It will be open to employers to require that workers are fully vaccinated against COVID-19 where those businesses require customers to show COVID-19 Vaccination Certificates to enter their premises. Hospitality and close-contact businesses were identified as clearly falling with the ambit of the intended vaccine mandate.
The Government has also signalled that the new legislation will introduce a clearer and simplified risk assessment process for employers to follow when deciding whether they can require vaccination for different types of work. The Minister for Workplace Relations and Safety, Michael Wood, has indicated the first draft of the Bill will be released in mid-November, and the legislation will likely be enacted in late November 2021.
The legislation is not intended to cut across previous health and safety risk assessments which have been properly completed by employers. Businesses which have already completed their risk assessments and have determined that certain roles must be performed by vaccinated workers can continue to rely on such assessments, provided that they are robust.
The new vaccine mandate will be welcome for many employers who are concerned whether they have the ability to require that certain roles are performed by fully vaccinated workers. While advice is available from the Worksafe website, many businesses have expressed their preference for a clear legislative framework. Certainty is vital, as a misstep could result in personal grievance claims.
That said, even with the introduction of the vaccine mandate, case law makes it clear that employers must still meet their employment law obligations owed to employees. We have provided an article regarding these employment law obligations previously here.
Employees will need to be explicitly warned (preferably in writing) to obtain vaccinations where the employer requires such workers to be vaccinated. Employers ought to engage constructively with affected employees (and unions where appropriate) to maintain the employment relationship and attempt to redeploy or reassign existing employees to alternative roles, or work locations, which do not require vaccinated persons to carry out the work.
Non-vaccinated employees who hold roles which require a vaccinated worker will be entitled to a four week notice period to obtain a vaccination before their employment can be terminated. Employees who have notice periods in their employment agreements will not be affected by this unless their notice period is shorter than four weeks.
Under the legislation, employers can exempt employees from their vaccine mandates on medical and/or religious belief grounds.
Further, businesses which don’t require vaccine certificates to offer their services may still require that certain roles are performed by vaccinated workers, provided that robust health and safety risk assessments have been completed.
We expect that many employers will be considering the prospect of mandatory vaccinations, given the added clarity following the announcement yesterday. Furthermore, employers have an obligation under the Health and Safety at Work Act to ensure the health and safety of their workers. Failing to do so could attract serious consequences. For example, where PCBUs have been unreasonably reckless regarding their COVID-19 safety protocols which have led to a fatality within their teams, directors and officers can be held personally liable, with maximum penalties of up to $600,000 and up to five years’ imprisonment.
We expect that issues are most likely to arise where employers seek to rely on their vaccine mandates and ultimately terminate unvaccinated employees where they hold roles which employers determine must be held by vaccinated workers.
K v Minister for COVID-19 Response
Lastly, we turn to the Wellington High Court case, where four aviation workers covered by the COVID-19 Public Health Response (Vaccinations) Order 2021 are currently challenging the legality, efficacy and safety of the COVID-19 Order mandating vaccines for certain border workers and they are seeking the Order to be quashed. We expect that the plaintiff’s case will not succeed.
However, we note that much of the evidence presented by the Crown Law Office and New Zealand’s Director-General of Health is that no COVID-19 safety measure is fail-safe and employers should use all protocols available to them, including vaccinations. Justice Cooke has also indicated that a significant matter in assessing the justification of the Order is the ability of the Pfizer vaccine to reduce virus spread.
We expect that the judgement will ultimately strengthen an employer’s argument for mandatory vaccinations in the workplace as part of their health and safety response as the emergence of the Delta variant has significantly reduced the efficacy of other control mechanisms.
The vaccine mandate legislation will also provide many employers with greater clarity on when they can require certain roles to be performed by vaccinated workers. Based on what has been announced by Minister Wood, we would expect that most employers could legitimately require their roles to be performed by fully vaccinated workers (subject of course to the exemptions based on religious and/or medical grounds).
Please contact us if you require further advice regarding the recent COVID-19 vaccination updates or if you have any other COVID-19 employment-related questions.