Vaccination mandates – employer FAQs

This week sees a relaxation of vaccine mandates in both the public and private sector. What does this mean for employers?

From 11.59pm, 4 April 2022, the government scraps vaccination mandates, except those in the health and disability sector, prison staff, and border and MIQ workers. In addition, the government will no longer require workers at premises where My Vaccine Passes are used (including food and drink services, events, and gyms) to be vaccinated.

WorkSafe have also released updated guidance for employers using a health and safety risk assessment to justify vaccination policies in the private sector.

These two changes are significant, and effect employers who were relying one of the no longer valid government vaccination mandates to require workers to be vaccinated and employers who were not covered by a government vaccination mandate but had implemented their own vaccination policy having conducted a health and safety risk assessment.

Here are some Frequently Asked Questions about the changes.

Do employers have to re-hire employees who lost their jobs under a vaccination mandate?

No, provided:

• the process was completed prior to the expiration of the government vaccination mandate on which the termination was based; and
• the health and safety risk assessment underlying the policy on which termination was based was fit for purpose at the time the termination occurred (this will be more of a concern for terminations effected recently, but based on a health and safety risk assessment conducted some months ago).

Where an employer is part way through a termination process, it should pause to ensure that the basis on which the termination is based (government mandate or employer health and safety risk assessment) remains valid and justifiable.

Are health and safety risk assessments made using the previous WorkSafe guidance, or the government vaccination assessment tool, invalid?

No, provided the health and safety risk assessment remains fit for purpose.

However, given WorkSafe’s updated guidance, employers do need to go back to their health and safety risk assessments and reassess whether they remain fit for purpose. They, and any vaccination policy based on the risk assessment, may well need updating.

The COVID-19 landscape in New Zealand has changed. We now have omicron, rather than delta; we now have wide spread community transmission; the government is no longer chasing an elimination strategy; we have a high vaccination rate; and employers have access to RAT testing, should that be required. All of those circumstances, and others unique to each business, need to be considered when reviewing a health and safety risk assessment.

WorkSafe’s view is now that the public health justification for requiring vaccination is stronger when the risk of contracting and transmitting COVID-19 at work is higher than it is in the community. Employers need to take this into consideration when reviewing their health and safety risk assessments and vaccination policies.

What about employees who are anxious about their unvaccinated colleagues/clients/contractors returning to the workplace?

In workplaces which everyone in the workplace is required to be vaccinated, there may be employees who are concerned about that changing. This is understandable, particularly where those employees are themselves, or have whānau who, are at higher risk of the effects of COVID-19.

It is important to remember that an employer’s obligations pursuant to the Health and Safety at Work Act 2015 include looking after the mental as well as physical health and safety of its employees. Therefore, the physical health and safety (including whether there are employees at higher risk of the effects of COVID-19), and the mental health and safety (including where there are employees who are anxious about the workplace no longer being a ‘fully vaccinated’ space) should be considered when proposing changes to a vaccination policy.

However, this will only be one factor, and may be reasonably addressed by the employer taking steps to mitigate the risk, such as continuing social distancing, continuation of the ability to work from home where appropriate, and RAT testing if required.

Do employers have to consult employees if they are proposing to change a vaccination policy?

Yes. The Health and Safety at Work Act 2015 requires employee consultation when implementing or changing health and safety policies, and the Employment Relations Act 2000 is also likely to require good faith consultation in this situation.

Want to know more?

Please get in touch with our Employment Team if you have any other questions regarding COVID-19 vaccination mandates and employer policies.

PDF version: here.

This article was included in Edition 14 of our employment newsletter – Employment News which you can read here.