November 2021
For New Zealand employers, 2021 has been a year like no other. New Zealand enjoyed almost a year of freedom after the March 2020 COVID-19 lockdown, before the emergence of the Delta variant and widespread community transmission which has resulted in some new and significant issues for New Zealand employers and employees to deal with, including broad mandatory vaccination requirements.
The Government introduced the COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccination Order) in April 2021, which initially mandated vaccination for a restricted group of workers including those working at managed isolation and quarantine facilities, airports, and ports. Since that time, the Vaccination Order has been updated and a wider group of workers are now captured by the mandatory vaccination requirement, including workers in the health and disability and education sectors.
There have been several challenges mounted in the courts to question the lawfulness of the Vaccination Order itself and decisions made by employers following the orders.
To date, those challenges have failed. The High Court has ruled that the Vaccination Order encompasses the power to require a person not to associate with others unless vaccinated, and to be vaccinated in order to engage in an activity. The Court found that the Vaccination Order is lawful. There have also been some employment-related challenges, and in several cases, the Employment Relations Authority has declined to reinstate employees who have been dismissed for failure to comply with the Vaccination Order.
There is, however, still a need for employers to comply with the statutory obligation of good faith when dealing with employees captured by the Vaccination Order. Employers must consult with employees to determine whether they are an ‘affected person’ captured by the Vaccination Order. This is proving to be troublesome for some employers, particularly in the health and disability sector. For example, does the Vaccination Order cover back-office workers?
The Government has also announced that it will mandate vaccinations for workers at businesses where customers need to show COVID-19 Vaccination Certificates, such as hospitality and close-contact businesses. The Government has indicated that this mandate will come into effect this year, likely by the end of November to align with the imminent move to the COVID-19 Protection Framework (traffic light system).
Under the Health and Safety at Work Act 2015, a PCBU (Person Conducting a Business or Undertaking) employer has a primary duty to ensure, as far as reasonably practicable, the health and safety of its workers and those affected by its work. There is no doubt that COVID-19 poses a risk to the health and safety of workers and those affected by work. It is a harm that all PCBU employers are required to manage. Employees also have an express duty under the Act to not only keep themselves safe at work, but others too.
PCBUs can and should implement a range of control measures to reduce the risks arising from COVID-19 including, but not limited to, mask wearing, physical distancing, good hygiene, regular cleaning and maintenance, and testing for COVID-19.
Having said that, vaccination is arguably the most important control measure to minimise the risks posed by COVID-19. Vaccines have been shown to be effective in reducing transmission of the virus and protecting vaccinated individuals from severe effects of the virus and its variants – including the Delta variant currently circulating in New Zealand. Clinical studies show that the Comirnaty (Pfizer/BioNTech) vaccine is, after two doses and on the evidence provided, 93.7% effective against the COVID-19 Alpha variant and 67% effective against the Delta variant.
Employers who are not covered by the Vaccination Order should be looking to undertake a health and safety risk assessment for their workforce to determine if they need to implement a mandatory vaccination requirement in order to fulfil the primary duty to keep workers safe.
Government has signalled it will be introducing legislation that provides a risk assessment process for employers to follow when considering whether to introduce a mandatory vaccination requirement.
In the interim, WorkSafe has published guidance as to how employers can undertake this assessment. It suggests that employers consider a range of factors, including how many people the employee comes into contact with; how easy it will be to identify those people; proximity between people in the workplace; duration of exposure to others; interaction with people considered at high risk of severe illness from COVID-19; and the risk of infection and transmission compared to the risk outside work.
That legislation will likely also include some procedural requirements that an employer, who has justifiably implemented a vaccination requirement, needs to consider when dismissing an employee who refuses to be vaccinated; for example, providing one month’s paid notice before terminating employment.
The advent of COVID-19, its variants and its unpredictable behaviour is complex and constantly changing and has resulted in a lot of concern and uncertainty in our communities. The position is particularly difficult for employers, who are subject to a range of legislation and regulations which are impacted by the present COVID-19 situation. Legislative changes and case law confirm that mandatory vaccination is likely to become more prevalent in the workplace and that employers will have to deal with employees who decline to be vaccinated. The future remains uncertain across a wide range of issues including ongoing vaccination requirements (including booster shots), labour supply issues in specific sectors and regions, and the ability of employees to travel for business reasons. Employers will need to remain agile and flexible in responding to these ongoing challenges.