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Covid-19 Vaccination Mandates, Exemptions and Employment Law.

On 3 December 2021, the Covid-19 Protection Framework (known as the Traffic Light system) replaced the Covid-19 Alert Level system that New Zealand was previously operating under. 

The Covid-19 Protection Framework places a heavy emphasis on a person’s vaccination status and it imposes different obligations and restrictions on various businesses at each traffic light setting.  As a result, it is important that both employers and employees alike understand their rights and obligations under this new system.

 

Vaccination Mandates

Prior to the Covid-19 Protection Framework, the Government had mandated vaccination for certain roles relating to the border, health and disability, corrections and education sectors.  The new framework has extended these vaccine mandates to cover certain roles within businesses that are required to utilise COVID-19 Vaccination Certificates (CVC), such as in restaurants, bars, gyms, permitted events and close-contact businesses.

It is important to understand that vaccination mandates do not require a person to be vaccinated.  The focus of the mandates is on the roles being undertaken.   This means that an employee may choose whether or not to be vaccinated.  However, if their role falls within one that must be undertaken by a vaccinated worker, and the employee remains unvaccinated, then the employer may take steps up to and including termination of employment. 

If a worker is covered by the mandatory vaccination requirement, the following vaccination deadlines apply to them:

  1. Affected persons in the education and health and disability sectors must receive their first dose by 15 November 2021 and their second dose by 1 January 2022; and
  2. Workers at settings where a CVC is required for entrance must receive their first dose by 3 December 2021 and their second dose by 17 January 2022.

 

Exemptions

Individuals who cannot be vaccinated for medical reasons may be able to seek an exemption from the above vaccination mandates.  For example:

  1. The Chief Executive of MBIE may authorise non-vaccinated workers at businesses where a CVC is required for entrance to carry out certain work provided that the work is unanticipated, necessary, and time-critical, cannot be carried out by a vaccinated person, and must be carried out to prevent the ceasing of operations.
  1. Affected persons in the health and disability, corrections and education sectors who are not vaccinated may be able to obtain a temporary medical exemption for up to six months. An application for exemption must be submitted by a medical practitioner and will be determined by the Temporary Medical Exemptions Panel.
  2. An employer of an unvaccinated affected person in the health and disability, corrections and education sectors may apply to the COVID-19 Response Minister for a temporary significant service disruption exemption, valid for up to six months.

 

The threshold for meeting the criteria of the exemptions is high and such exemptions will only be available in exceptional situations.

 

Employer Risk Assessment

If an organisation is not covered by a vaccination mandate, an employer may still be able to require some or all of their employees to be vaccinated.  Before making any such determination, the employer must undertake a risk assessment.  In the course of doing so, the employer must continue to comply with their obligations under the Employment Relations and Health & Safety at Work legislation, consult on any proposed changes and consider reasonable alternatives including any other steps that can be taken to minimise the risk of infection and transmission in the workplace.

From mid-December, there will be a new vaccination assessment tool available. However, the new tool will not override WorkSafe’s guidance (access here).

If an employer determines that certain roles can only be carried out by vaccinated workers, the employer should provide the employee with a reasonable timeframe to decide if they will be vaccinated.  

In the event that termination of employment is necessary, the employee is entitled to a minimum four-week paid notice period.  However, if the employee gets vaccinated within the termination period, the termination notice is automatically cancelled unless this would unreasonably disrupt the employer’s business.  In our opinion, the Employment Relations Authority will set a high bar when determining what is unreasonable.

 

Employment Law

As an employer, it is important to remember that despite the above new framework and vaccination mandates, employment law obligations continue to apply.  This means that parties to an employment relationship must continue to deal with each other in good faith, be fair and reasonable, be communicative, and follow proper processes. 

Accordingly, before an employer makes a decision in relation to vaccination and/or termination, they should consider and address issues such as:

  1. Whether there are any practical barriers to an employee accessing vaccination (e.g. if travel or time off work is needed). 
  2. Whether work arrangements can or should be changed (hours, location of work, duties) to minimise risk.
  3. Whether the high-risk role can be deferred.
  4. Whether redeployment is an option.

In summary, the employment law landscape so far as it relates to Covid-19 requirements is changing rapidly.  As a result, we strongly recommend that you seek legal advice if you are looking to make a decision regarding vaccination in your workplace or if your employer is seeking to consult on new Covid-19/vaccination requirements relating to your role.  

Please feel free to contact our employment team if you have any questions and/or need any advice on the above.

Harmans employment team: Mary Crimp, Graeme Riach and Jennifer Liu.

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Published: 07/12/2021

The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter.

 

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