Martelli McKegg senior solicitor Aimee Elia provides guidance for employers considering implementing a mandatory vaccine policy
As New Zealand has moved into the Covid protection framework (otherwise known as the traffic light system), a number of businesses may find that they are covered by a vaccine mandate. Businesses not affected by the Government mandates may nonetheless opt to implement a vaccine policy if, after carrying out a risk assessment, they determine that employees must be vaccinated to minimise and reduce the risk of catching or transmitting Covid-19 in the workplace.
Please note this guidance is current as of mid-February and should not be relied on as legal advice.
Should your business implement a vaccine mandate?
Under the traffic light system, a number of industries can only fully operate at levels red and orange if they require customers to produce a Covid-19 vaccination certificate. As of the date of this article, the businesses covered by this requirement include hospitality, close contact businesses such as hairdressers and others providing personal services, gyms, and events.
At this time, the building and construction sector does not fall within the remit of the mandatory vaccination order, however there are various situations in which only vaccinated workers will be able to carry out certain work. In particular, when the work is being carried out at a business or premises affected by the mandatory vaccination regime, such as a health or education facility.
Businesses that do not fall under the mandatory vaccine order or the traffic light system (including the construction sector) still need to think about whether or not to introduce a
vaccine policy. Under the Health and Safety at Work Act 2015,
businesses must ensure measures are in place to ensure the
health and safety of employees and others.
To understand whether they are carrying out work that puts workers at high risk of catching or spreading Covid-19, businesses will need to undertake their own risk assessment. This will involve assessing the work that needs to be performed, not the person that is carrying it out. As with all health and safety risk assessments, this should be in consultation with workers and, if appropriate, their representatives.
What is the vaccination assessment tool?
The Government has created a vaccination assessment tool that businesses can use to determine whether it is reasonable to require workers to be vaccinated against Covid 19. This vaccination assessment tool is available at business.govt.nz/covid-19/vaccination-assessment-tool.
There are four key factors to consider:
Whether the workplace is less than 100m2 in size.
Whether workers are in close proximity to others.
How long the workers will be in close proximity to others.
Whether the business provides services to those who are vulnerable to an adverse outcome from Covid-19.
A business will need to be meet three of the four risk factors to establish a vaccine mandate.
Businesses can either use the government’s vaccine assessment tool or create their own. The benefit of using the tool is that there will be greater legal certainty that the business has taken into account the appropriate risk factors (therefore making it more difficult that aspects of the process could be challenged in Court). As an alternative, WorkSafe currently has several factors for businesses to consider when undertaking a risk assessment on their website or the business can create their criteria.
When undertaking a risk assessment and introducing a Covid-19 vaccination mandate, businesses must, as far as reasonably practical, consult with their staff and their workers’ representative (most likely the appropriate union). However, there are rules around how much personal information can be provided to workers’ representatives.
If you are considering undertaking a risk assessment or introducing a vaccine mandate, we encourage you to seek legal advice to ensure that you are following a good process.
What if my business has a mandate and I have employees who are not vaccinated?
If a business decides that the work is high risk and should only be performed by a fully vaccinated worker, it will have obligations to deal with any affected employees in good faith.
If your business implements a vaccine mandate, you must give your employees paid time off during work hours to get the vaccine. However, a business can refuse if this would unreasonably disrupt the employer’s business or the performance of the employee’s employment duties. The employee must also give their employer prior notice if they are intending to take leave to get vaccinated.
If the employee refuses to be vaccinated, re-deployment should be considered. As always, termination of employment should be the last resort and must be carried out in a procedurally fair manner.
Before termination, the employer must consult with the employee and consider whether there are any reasonable alternatives to termination. Just like with any other termination, a good process should be followed. The employer should meet with the employee (and their representative if they choose to have one) to discuss whether there are any alternatives to termination.
If the employee refuses to be vaccinated and there is no alternative, then the employer may terminate the employment on no less than four weeks’ notice. This notice period must be paid.
If the employee is vaccinated within the four-week notice period, the termination is revoked and their employment continues in the normal fashion. Employees still retain the right to bring a personal grievance in respect of their dismissal, therefore it is crucial that employers follow a fair consultation process.
In some cases, head contractors will only allow vaccinated workers onsite. For the most part, this will be lawful as it is well established that occupiers have the right to impose conditions of entry onto the property they control. This can cause significant issues as businesses may be faced with a situation where they simply do not have sufficient work to provide to an unvaccinated worker who is unable to work at certain sites. If this occurs, it may give rise to a redundancy situation. If you are considering making a worker redundant for this reason, we strongly recommend that you seek legal advice first.
If you wish to introduce a vaccine mandate or have any questions concerning the above, contact the employment team at Martelli Mckegg; Claire Mansell, Aimee Ella and Matthew Martin.
Aimee is a senior solicitor in the litigation team at Martelli McKegg. She provides litigation services and advice on a range of commercial matters with a particular focus on employment and construction law.
Her phone number is 09 950 9033 and e-mail aimee.elia@martellimckegg.co.nz. This article is not intended to be relied upon as legal advice.