COVID-19 – Goodbye to vaccine mandates?

Civil Litigation & Dispute Resolution
Apr 01 2022

From 4 April 2022, COVID-19 Government vaccine mandates will be removed for many workers around New Zealand, including for those working in education, Police and Defence Force. However, Government mandates will remain in place for workers in health and disability, aged care, prison and border work, with some narrowing (to be advised).

The explanation for the retention of mandates in some areas is that these are either workers supporting our most vulnerable, or workers in high risk environments where potential spread would be rapid or where the exposure to new variants is high.

On 30 March 2022, WorkSafe released guidance on what the removal of Government vaccine mandates on 4 April 2022 will mean for private businesses with their own employer vaccine mandates. This is in light of new public health advice, the fact that Omicron is now the main variant of COVID-19 in the community (which spreads more easily and is generally less severe), and taking into account New Zealand’s now high vaccination rates.

The new advice is that “requiring vaccination in the workplace should only be permitted if it’s deemed an employee is at higher risk of catching and spreading COVID-19 while at work, than they would otherwise be in the community.” Vaccination is said to be “not a suitable first response for managing COVID-19 in most workplaces”.

Workplace Relations and Safety Minister, Michael Wood anticipates that the advice above will “significantly reduce the use of vaccine requirements in most settings and the circumstances are likely to be more limited than they have in the past now that Omicron has entered the community”.

However, workplaces can maintain employer vaccine mandates if they have undertaken a health and safety risk assessment, had regard to current public health advice, engaged in good faith discussions with workers and unions, considered alternatives and concluded that vaccination is necessary for roles in their workplace. It is noted too that vaccination may be required if workers are required to be vaccinated in order to access and perform work in workplaces or sites where vaccination is required.

What does this mean for employers?
The Minister advises that all workplaces should review their health and safety risk assessments in light of current public health factors. WorkSafe advises employers to ask:

  • 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)?

The Minister advises that businesses should regularly review their health and safety risk assessment, as public health advice changes, to decide whether they need to keep their own employer vaccine mandates in place. The Minister also advises that employers should undertake an updated health and safety risk assessment before proceeding with any employment processes that they may already have in place.

Based on the updated guidance, it will be more difficult to justify existing employer imposed vaccine requirements and sustain existing mandates.

We note that companies such as Spark and PwC have already announced that they will no longer require proof of vaccination for staff and visitors. We anticipate that over the coming weeks, we will see a noticeable shift in employers removing their vaccine requirements.

Running alongside this is a change in vaccine exemption requirements, meaning that unvaccinated employees who can prove they have had COVID-19, can obtain a temporary vaccine pass of up to 3 months. This exemption may prove problematic for employers in mandated workplaces, where they will have to consider allowing those workers back on site while exempted, considering any health and safety risks presented, and then take steps when the temporary vaccine exemption expires.

Do employers need to reinstate unvaccinated employees who have had their employment terminated?
For employers that choose to remove their own vaccine mandate, they are not required to re-employ unvaccinated workers whose employment was terminated when the mandate was in place.

Risks for employers
Employers should be aware that employees can bring a personal grievance claim if they feel that they have been unjustifiably disadvantaged or dismissed because of the employer’s vaccination requirement. Normal employment law and processes continue to apply. This means that employers should be fair and reasonable in their employment decisions and work in good faith with employees and unions before taking any employment actions in relation to unvaccinated employees. They should also be consulting with employees and unions around their own mandates and health and safety risk assessments, as the advice and risk changes and evolves. Given the new advice, now is an appropriate time for review.

With the new WorkSafe guidance we anticipate that employer mandates will be increasingly challenged. Employers should review their existing risk assessments and vaccine mandates. If they determine to continue with these, they should have valid reasons, supported by updated risk assessments and be able to defend them based on the criteria above.

WorkSafe has advised that so long as employers follow public health guidance, engage with workers and unions and regularly review their risk assessments, WorkSafe will not take action against them.

If you have any questions regarding these changes and guidance and how they could affect your business or employment, our Employment team can assist.

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