New COVID legislation makes it easier for employers to impose vaccinate mandates

Friday 3 December, 2021

On 26 November 2021, the COVID-19 Response (Vaccinations) Legislation Act 2021 (“the Act”) came into force, followed by the COVID-19 Public Health Response (Vaccinations) Amendment Order (No 6) 2021 on 3 December 2021 (“the Order”). The Act creates the legal structure for the new COVID-19 Protection Framework (traffic light system) which took effect on Friday 3 December 2021. The traffic light system loosens the restrictions on hospitality, gyms, events, and close contact businesses, such as hairdressers, provided they operate using vaccination certificates.

Under the Order, employees working in business operating in these higher-risk settings will now need to be vaccinated. These employees have until 3 December to have their first vaccination and must be fully vaccinated by 17 January 2022, unless exempt. Under the Act, employees will be entitled to reasonable paid time off to get vaccinated, including getting booster shots. The Act also makes it easier for the Government to extend the vaccine mandate to other industries or types of work.

New risk assessment tool

Many other workplaces, including local authorities, have chosen to make vaccination certificates compulsory before coming onto their premises. The Government is going to make a new risk assessment tool available to help businesses to make decisions about whether to require vaccinations in their workplace. The new tool will not affect risk assessments that have been completed using the current guidance provided by WorkSafe, and businesses have the option of continuing to use the current risk assessment framework.

The tool is likely to be based on four factors:

• The physical work environment: low risk if it is outside or there is more than 100m² of indoor space.
• Proximity to others: low risk if the person works at least 1 metre apart from other people.
• Length of proximity: low risk if the worker spends less than 15 minutes in close proximity to other people.
• High risk if the worker provides services to people who are vulnerable to COVID-19.

Businesses will have to carry out a risk assessment for each role within their business and will need to be ‘high risk’ for at least three factors before it can require vaccination for a particular role.

Termination of unvaccinated employees

The Act gives employers the power to dismiss unvaccinated employees (unless they have an exemption) where:

• The employee’s work is covered by a vaccine mandate, including a higher-risk workplace that requires vaccine certificates; or
• The employer has carried out a risk assessment and determined that the employee needs to be vaccinated to carry out their work.

The employer needs to give the employee reasonable written notice that they must be vaccinated and specify the date that they need to be vaccinated by. If the employee is not vaccinated by the required date, the employer needs to consider whether there are any alternatives which will allow the employee to keep working, such as working remotely, carrying out alternative duties, unpaid leave and the like. If there are no alternatives, the employer must give the employee at least four weeks’ paid notice of termination, or the period specified in their employment agreement if it is longer than four weeks. If the employee gets vaccinated during this notice period, the notice of termination will be cancelled unless it would be an unreasonable disruption to the employer’s business.

Our views

While helpful in some respects, and for some employers, this new law could be unwelcome for some. The new risk assessment tool is straight forward and easy to apply, and should be useful for businesses with small, indoor workplaces. However, it may be less useful for businesses with larger premises, and it does not take account of the size of the workforce, despite the potential for more people to be exposed if an unvaccinated worker tests positive for COVID.

The extension of the vaccine mandate to businesses operating in these higher-risk settings means that an estimated 40% of New Zealand workers will now be covered by a vaccine mandate. As vaccination levels in New Zealand are now approaching 90% of the eligible population, this may not be an issue for most employers. However, for those with employees who fail to get vaccinated before the required date, it is essential that they continue to act in good faith and comply with their employment obligations.

While the introduction of a minimum four week notice period is great for employees, it could mean a significant financial burden for businesses already struggling.  If an employee has a one-week notice period under their employment agreement, for example, the Act this imposes an extra three weeks’ pay.  If the employee then receives their first dose of the vaccine, the notice is cancelled, and they can return to work (unless it would create unreasonable disruption).  This leaves employers having to pay a second four week notice period if the employee does not receive their second dose before the required date. In addition, they may need to also pay a vaccinated person to do the work over the same period. If an employer has several unvaccinated staff, the financial impact could be significant.

If your business or your employer is facing issues around vaccination, please feel free to contact our Employment experts below for advice specific to your circumstances.