The Government has now released new draft legislation regarding vaccination in an employment context (COVID-19 Response (Vaccinations) Legislation Bill) (Bill). The Bill is not yet law, but is expected to be passed swiftly through Parliament in the next week or so. As will be clear from the summary below, the Bill is a framework only – much of the detail is yet to come (hopefully soon!).
Vaccination mandates for vaccination certificate workplaces
The Bill would make it easier for vaccination to be mandated for additional types of work. Reading the Bill in light of Minister Wood's public comments yesterday, these amendments appear to be targeted at mandating vaccination for workers where COVID-19 vaccination certificates could operate (hospitality, events, gatherings, close contact businesses and gyms). Assuming this is the case, the detail (exactly what work is covered) will be fleshed out in regulations or orders that are yet to be released.
Minister Wood has said workers covered by these mandates will be required to have their first vaccination by 3 December 2021 (the day the COVID-19 Protection Framework or 'traffic light system' is due to come into force) and their second vaccination by 17 January 2022.
Lawful termination of employment for some unvaccinated employees
A key amendment proposed by the Bill is the inclusion of a statutory right to terminate unvaccinated employees in particular circumstances. The Bill provides that an employee can be terminated on four weeks' notice (or the notice period in their employment agreement, if longer) if the employee is not vaccinated (and does not have an exemption) and:
the employee's work is covered by a public health order requiring vaccination (including because the employee works at a COVID-19 vaccination certificate workplace); or
the employer has determined the employee must be vaccinated to carry out their work.
There is no guidance on any particular process an employer must follow before determining that an employee must be vaccinated in order to carry out their work. However, we consider this would likely be met if a risk assessment had been conducted (note our comments below regarding a risk assessment tool).
In order for termination to be lawful:
The employer must have given reasonable written notice specifying the date by which the employee must be vaccinated (and the employee must have remained unvaccinated by that date).
The employer must have ensured that all other reasonable alternatives to termination have been exhausted.
In addition, if the employee gets vaccinated after being given notice, the notice of termination is cancelled, unless cancellation would unreasonably disrupt the employer's business.
In our view, these proposed amendments would provide substantive justification for any termination. Section 103A of the Employment Relations Act (the test for justification of dismissal) and the personal grievance regime would continue to apply.
Risk assessment tool
The Bill expressly allows for regulations to be made that prescribe a risk assessment tool for an employer to use to determine whether it is reasonable for work to be performed only by employees who are vaccinated, or to require that they are tested.
This tool would be able to be used for any work not covered by an order requiring vaccination. Employers would, however also be able to use any other risk assessment methodology they prefer – whether they do so will be at their "absolute discretion". Employers would need to consult when conducting a risk assessment. The Bill does not go into detail about the particulars of the risk assessment tool – these details would be in regulations made once the Bill has passed into law.
Other employment related changes
The Bill also provides that employees are to have reasonable paid time off during their normal working hours to be vaccinated – provided the time off does not unreasonably disrupt the employer's business or the performance of the employee's employment duties.
It is fair to say that the Bill has been drafted quickly and it shows. There are some notable missteps (including the many references to termination of an employment agreement, rather than termination of employment), which will hopefully get ironed out in the next week or so, as the legislation moves through Parliament. We are also waiting on the underlying orders/regulations in relation to new mandates and the health and safety risk assessment. We will keep you updated on progress.
Please get in touch if you would like to discuss how these changes may impact you and your organisation.