New Zealand's vaccination programme is full steam ahead with a number of government initiatives targeted at getting us to a 90% vaccination rate. As Delta persists and vaccination numbers creep up, many employers are turning their mind to their workplace approach to vaccination. This is a rapidly developing area and we set out below some key developments and some pointers for employers when considering the big vaccination question.
Mandatory vaccination orders
Last week, the Government announced that the COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccination Order) will be extended to cover the education and health and disability sectors. The Vaccination Order already requires vaccination for certain border and MIQ roles. This is a significant step in New Zealand's vaccination rollout given the size of these two workforces.
The updated Vaccination Order has not yet been released – meaning that the precise scope of roles to be covered is not clear. The Government has indicated that it will require anyone conducting high-risk work in the health and disability sector to receive their first dose of the vaccine by 30 October 2021 and be fully vaccinated by 1 December 2021. More details are available here.
From 1 January 2022 all schools and early learning services must ensure that only vaccinated people have contact with students, and providers will be required to maintain a register of vaccinated staff. Again, the scope is unclear at the margins – including how this might apply to volunteers, parents and visitors on site. Affected individuals need to receive their first dose by 15 November 2021 and the second dose by 1 January 2022.
There have now been a handful of matters heard by the Employment Relations Authority where unvaccinated border workers have challenged termination in circumstances where the Vaccination Order applies. Early indications of the Authority's view in such circumstances is that dismissal will be justified provided a full and fair process is followed, including consideration of redeployment. We covered the first substantive Authority determination in more detail here and subsequent determinations have reached the same outcome. At least two of these determinations have been appealed to the Employment Court, so we can expect some more guidance on the scope of the Vaccination Order in the current months.
What should employers be thinking about
With Delta ever present in our community, many employers are considering the options available to them to keep their people and their families safe in the workplace. For employers considering vaccination options, here are some key points to consider.
Employers can ask employees if they are vaccinated, subject to complying with Privacy Act obligations (including taking care to advise of the purpose of collection). This is often a useful first step in ascertaining the level of vaccination across the workforce. If employees do not disclose whether they are vaccinated, employers can assume they are unvaccinated but the employees should be notified of that assumption. If this information is collected other than anonymously, it will need to be stored securely and only used for the purpose for which it was collected.
Employers can, of course, strongly encourage vaccination. Many employers have introduced incentives to entice the vaccine hesitant to take up vaccination. These include additional leave, financial incentives and knocking off early if certain vaccination thresholds are met.
In some circumstances, employers can require roles to be carried out by a vaccinated person following a health and safety risk assessment. MBIE has issued a position paper on this, which can be found here. WorkSafe has recently provided guidance on how to decide what work requires a vaccinated employee and the risk assessment which should be undertaken. We anticipate that this will be most relevant for work with vulnerable people and/or work which involves contact with a large number of members of the public. Any dismissal on this basis would only be justified if other controls (masks; social distancing; working from home) were not effective to minimise risk to tolerable levels.
Other employers are requiring proof of vaccination as a condition of entry to the workplace. We have seen this approach adopted more widely in overseas jurisdictions and many New Zealand employers are now looking at this option. This approach may also involve requiring unvaccinated employees to work from home (only an option for some types of work).
Social distancing and mandating mask use in common areas (or where social distancing cannot occur) are likely to continue to be common place. These can be required by an employer on health and safety grounds.
This is a largely untested, complex and developing area of law. Different approaches will be appropriate (and lawful) for different organisations. If you would like to discuss your options and what approach is best for your workplace, please get in touch with a member of the team.