Vaccination Requirements in the high vaccination era
By: Ruthi Bommoju
Intermediate Solicitor, EMA
Earlier this month, the Government removed COVID-19 vaccination mandates for the defence services, education sector and police force. Government mandated vaccination requirements for health and disability, aged care, corrections, and border workforces remain.
The removal of vaccination mandates, coupled with various factors, including a 95% double-dose vaccination rate in New Zealand for eligible individuals over 12 years, and ability to use alternative measures, e.g., RATs, has prompted queries among businesses that have required roles to be performed by a vaccinated person outside of Government mandates. This article provides general guidance to employers not covered by a public health order (“Order”) on some key issues arising in the current COVID-19 vaccination environment.
Should we review whether employer-mandated vaccination requirements are still required?
The change in the Government’s approach to vaccination mandates do not apply to employer-mandated vaccinations.
The starting point for an employer should be to review their own vaccination policy and consider the current public health advice and other changes that have occurred in the workplace since the introduction of vaccination requirements. Employers need to consider whether their mandates are still required, and whether there are any changes that need to be made to existing policies. This should be considered as part of an updated work health and safety risk assessment. It’s also important to undertake this review where employees have not been able to attend the workplace and have agreed to temporary working arrangements e.g., working from home, paid/unpaid leave for a period as an alternative to being vaccinated and/or to address workplace issues about employees not wanting to work with unvaccinated colleagues.
It is important to note that the Vaccination Assessment Tool which had been put in place under the COVID-19 Public Health Response Regulations 2021 and used by many private employers, is intended to be formally removed in May 2022. Accordingly, it is not recommended that employers now rely on this tool when reviewing or conducting health and safety risk assessments.
When looking at undertaking a work health and safety risk assessment, WorkSafe has provided some guidance, which is based on current public health advice, for employers on their website which is a useful starting point for employers. It outlines the public health factors that employers should consider as part of their work health and safety risk assessment. These include:
- Is there a greater risk of the worker being exposed to new variants at work than they would be in the community?
- Does the worker regularly, as part of their work, interact with people who are at greater risk of severe illness should they contract COVID-19?
- Does the worker regularly interact with people who are less likely to be vaccinated against COVID-19?
- Does the worker work in a confined indoor space (of less than 100m2) and involve close and sustained interactions with others (i.e., closer than 1m distance, for periods of more than 15 continuous minutes)?
Employers must also consider other risk factors that are relevant and justifiable in respect of their workplace(s), actively assess other less intrusive controls and measures and are encouraged to engage with health and safety specialists to assist them in undertaking an assessment. It is recommended that employers keep up to date with any revised legislation, guidance from government agencies and changing public health advice. Further guidance for employers can be obtained from WorkSafe’s website.
Following an updated assessment, employers may still be able to maintain vaccination requirements. However, the circumstances where vaccination could be required are expected to be more limited than they have been in the past.
Of course, as with any employment law process, good faith obligations, robust consultation and due process is also key.
What if we are currently considering terminating an employee’s employment based on vaccination requirement undertaken using the previous assessment tool?
Schedule 3A of the Employment Relations Act requires an employer to exhaust all options before giving notice of termination. Considering the changes to public health advice and government mandates, employers should reassess their situation by undertaking a new work health and safety risk assessment and carry out a robust consultation process.
Do we need to re-employ a previous staff member whose employment ended due to their role having to be performed by a vaccinated person as we have now revoked our previous vaccination mandates?
There is no on-going employment relationship that exists post termination of the employee’s employment. Accordingly, unless there is an agreement entered into and/or policies and procedures in place which enables for already terminated employees to be rehired again, employees will not have the right to be re-employed into their former position. However, given the tight labour market, we expect that some employers may well be reaching out to their previous employees and offering them re-employment.
If employees are on leave/leave without pay because of them not being able to perform their role due to a vaccination requirement as an alternative to dismissal due to a prior arrangement agreement, these employees will need to be retuning back to work again if the vaccination requirement is no longer justifiable.
What about employees on their notice periods?
If an employer has already given an employee notice to terminate the employee’s employment but has since removed its vaccination requirements in the workforce or this is no longer justifiable in the current climate, and the employee is on their notice period, it is very likely that proceeding to end the employment relationship without revoking the notice would be high risk. Whilst an employer may have already made the decision to dismiss which could have been justified at the time the decision was made, i.e., when notice to terminate was provided, an employer continues to have obligations to employees during the entirety of the employment relationship, including whilst the employee is on their notice period which would render it risky to not revoke the termination notice given.
The removal of vaccination requirements will likely see employees who have been working from home, or whose employment has been terminated, return to the workplace and employers may grapple with vaccinated employees expressing concerns about not wanting to work with unvaccinated employees.
It is important for employers to tackle these issues promptly and ensure that there is adequate workplace reintegration, and to also avoid issues of bullying and/or discrimination arising. Employers should actively consider how they foster positive working relationships, reiterate expectations about non-discrimination, consider and address employee concerns and offer support measures such as Employee Assistance Programme. A robust revised health and safety assessment which has been coupled with a robust consultation process would likely ease many reluctant employees’ concerns in this respect.
This article provides general commentary only. COVID-19 continues to raise complex issues for employers, and each situation is fact-specific. Employers are encouraged to stay up to date with information in the current changing environment and seek specialist independent advice relevant to their situation before embarking on any processes.