New Zealand has entered a new phase of its Covid-19 response. Vaccination has been focused on as the primary means of protection from the Delta variant. Mandating vaccinations in the workplace is complex– especially as the official guidance changes so rapidly.

Vaccine mandated workers

• The Government has applied several measures to see vaccine rates rise. The COVID-19 Public Health Response (Vaccinations) Order 2021 (the Order) was introduced earlier in the year. This order covers work seen as high risk and requires workers to be vaccinated to perform that work.

• Judicial reviews of these orders have so far been unsuccessful.

• Recent publicity has also focused on education services as Boards of Trustees grapple with the Order. This is difficult as teacher shortages already existed. Employers also must comply with existing legal obligations to consult and give contractual notice under what can be complex collective employment agreements.

Employment challenges to dismissals

We recently saw an employee who was dismissed due to being unvaccinated convince the Employment Court to reinstate him to his role on an interim basis (albeit he is being paid to stay at home). The Court also ordered the parties to attend mediation promptly.

The employee was a long-standing and respected employee of Auckland International Airport working as a mechanical maintenance technician. He lost his job on the basis his role could not be fulfilled lawfully if he was unvaccinated His role required him to work in areas where international passengers were, albeit not very often.

During vaccine discussions, the employee proposed an alternative about how he could work and avoid those areas. The Airport considered this was not feasible largely due to the demands this might put on other staff. But there was insufficient evidence to suggest the Airport properly analysed the proposal and tested whether it was viable. The employee also had medical concerns (although apparently unfounded), which the Court says the employer did not properly take into account (despite directing him to Ministry of Health information about the vaccine).

The Court accepted there was an arguable case that the steps taken by the Airport when consulting with the employee were not those of a fair and reasonable employer (so the dismissal would be unjustified).

But in the meantime, the Airport had undertaken a newer risk assessment and introduced a policy requiring all workers to be vaccinated. So, the reality is that neither party may be inclined to reach a compromise at the directed mediation – there is a lot at stake for the Airport, and it may want its new policy tested one way or the other. Covid Protection Framework – the traffic light system The traffic light system will be in place by 3 December. This will result in even more employment law changes. There are further mandated vaccinations for staff in various sectors including hospitality, gyms, and close contact businesses, which must take place by January 17 2022.

For other business, a simplified risk assessment tool will be issued to allow them to help determine whether to be fully vaccinated. This assessment seems to indicate that the size of the workplace and the number of interactions staff have will be relevant.

Regardless, employers must continue to ensure they comply with their obligations of good faith and to consult and provide information where dismissals are being contemplated.

What does this mean in simple terms?

• Although not a redundancy under the law, employers could be mindful of the process followed when making a role redundant and apply that to the process of ending employment based on vaccine status.
• Employers can discuss employee’s (and prospective employee’s) vaccination status with them to properly assess the risk in the workplace. Employees do not need to disclose or prove they have been vaccinated, but if they do not advise of their vaccination status, the employer can assume they are not vaccinated (but must inform the employee of that assumption).
• If a business is not subjected to mandates, they cannot require employees to be vaccinated. However, employers can require the work to be done only by vaccinated workers, based on the risk of contracting and transmitting Covid-19 in that workplace. Read more about that here.
• To make that assessment, employers must assess their Covid-19 exposure risk. WorkSafe has put together some guidance on deciding whether to mandate vaccines for employees here.

Legislation is being passed quickly to try to make this process smoother for businesses and we expect further updates in mid- December.

Need more information or help? Talk to our employment law team.