Vaccination requirements - Traffic Light System

Friday, December 3, 2021

Today marks day one of the new COVID Protection Framework, also known as the Traffic Light System. After nearly two years of the alert level regime, there is a lot for businesses to get their heads around. However, key changes for employers to consider are the new vaccine mandates, and the impact this may have on their workforce. To assist, here’s our take on some of the key questions employers should be asking.

Do our workers need to be vaccinated?

The Traffic Light system has introduced vaccine mandates for workers at:

  • food and drink businesses or services (excluding services which are solely takeaway);
  • gyms;
  • close-proximity businesses or services (e.g. hair-dressers, salons, tattoo parlours);
  • events (e.g. festivals, sporting events, conferences); and
  • tertiary education services in areas at the red setting.

Workers (including employees, contractors and volunteers) who work in these types of business must have received at least their first dose of the COVID-19 vaccine by today (3 December 2021) and their second dose by 17 January 2022.

Importantly these mandates apply regardless of whether a business opts into the vaccine pass scheme – a significant change from what the Government originally announced.

What do we need to do?

Employers play a key role in implementing vaccination mandates; both in terms of bringing them to the attention of their staff and requesting appropriate proof of vaccination. This will mean asking workers to produce, for example, a copy of their Vaccine Pass, My COVID Record, or a letter from the Ministry of Health. Where a worker is unable or refuses to provide this information, the employer will need to assume that they are not vaccinated.

A worker who is not vaccinated or fails to provide proof of vaccination, will need to remain away from the workplace. If a worker fails to comply with this requirement, the employer will need to direct them to leave the premises.

What happens to unvaccinated workers?

Employers may need to consider terminating the employment or engagement of workers who are unvaccinated and who cannot continue to work.

In situations involving employees, the employer has obligations to first consult with the employee and consider whether there are alternative arrangements which could avoid termination. Examples of possible alternative arrangements include working from home, modifying the employee’s role, redeployment into another role which can be performed by an unvaccinated worker or a period of leave.

The importance of considering alternative arrangements really needs to be emphasised. We have already seen one case go through the Employment Court where an unvaccinated worker was dismissed and then reinstated to the payroll, on a temporary basis, due to the employer’s consideration of alternative arrangements being perceived as inadequate.

What are the rights of terminated workers?

Where the engagement of a contractor is terminated due to them being unvaccinated, they will be entitled to whatever notice is provided for in the contract for service.

In the case of employees, a minimum of four weeks’ paid notice will need to be given. This applies even if the employment agreement provides for a shorter notice period.

Importantly, notice of termination may not be the end of the line. If an unvaccinated employee changes their mind, and decides to receive the COVID-19 vaccine before the end of the four week notice period, the termination of their employment will be effectively cancelled and they will be able to return to work. The only exception is if this would unreasonably disrupt the employer’s business. For example, if it is has already hired a replacement worker, and there is no longer a role for the employee to return to.

What about workers who cannot be vaccinated for a health or religious reason?

A worker who cannot be vaccinated due to a health condition can apply to the Ministry of Health for an exemption from the vaccine requirement. If this is granted, they will be able to continue working unvaccinated. However, this will be a relatively rare occurrence, as the Ministry considers the circumstances where vaccination is medically inappropriate to be very limited.

The exemption process is not available to workers who have cited a religious reason for not being vaccinated.

Does this change the vaccination requirements for other employers/workforces?

In short no. There are a number of other workforces which were previously the subject of vaccine mandates, including workers at the border, in education and healthcare, and more recently, the police and defence force. These vaccine mandates remain in effect.

Employers also still have the option of introducing their own vaccine requirements for high risk roles if this is supported by an appropriate risk assessment. These risk assessments can be conducted in accordance with guidance from Worksafe or, from mid-December, the Government’s new risk assessment tool. Workers must be consulted about any risk assessment and any proposed vaccination requirement before they can be confirmed.

Assistance

These are unique and challenging times, and there is a lot to grapple with. If you need any assistance navigating these issues, don’t hesitate to reach out to our experienced employment law team who are always happy to assist.

 

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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