COVID-19 Vaccine Update - Dec 21

COVID-19 Update: COVID-19 Response (Vaccinations) Legislation Act 2021, Covid-19 Protection Framework Order and Further Information Regarding Covid-19 Vaccinations for Employers and Employees

At 11.59 pm 2 December 2021 New Zealand moved to the new COVID-19 Protection Framework (traffic light system). It is timely to provide an update of the steps employers should be taking to address and appropriately manage the risks that COVID-19 presents in the workplace, and their obligations.

COVID-19 Protection Framework Order (the traffic light system) (‘The Order’)

This system places significant responsibilities for preventing the spread of COVID-19 on businesses and individuals. It is important both employers and employees are aware of their obligations. Extensive information regarding how the framework applies to different types of businesses or activities can be found at https://www.business.govt.nz/covid-19/covid-19-protection-framework/. We have summarised the key obligations below.

Contact tracing – at all levels workplaces must:

• display a QR code in a prominent place at or near the main entrance;
• have an alternative contact record system in place; and
• have systems in place to ensure all people entering the workplace scan the QR code or manually provide a contact record.

Covid-19 Vaccination Certificates (CVCs):

• Under the Order, businesses must determine whether they will operate in accordance with the CVC requirements, which require all individuals over 12 years old on the premises to have a CVC (including workers).
• At orange or red, businesses can only perform some activities (for example providing food and drink services or close-proximity services) where they are operating under the CVC requirements.
• Whether a business can only operate under CVC requirements at orange or red depends on the activity being undertaken on the premises. Businesses can also choose to alternate between operating under the CVC requirements or not operating under the CVC requirements (i.e., carrying out an activity which requires CVCs one day, and non-CVC activities the next day). To operate in this way, a business must have systems and processes in place (for example, regular cleaning of surfaces) to mitigate the risks that arise from alternating between the rules.
• At orange or red, businesses that are required to operate under the CVC requirements must display a sign indicating this and stating a person may only be on the premises if they have a CVC. The business must also have systems and processes in place to check everyone on the premises is carrying a CVC.
• The Covid-19 Public Health Response (Vaccination) Amendment Order (No 6) 2021 creates an exception where workers of a business operating under the CVC requirements can continue to perform their role once they have had the first dose of a COVID-19 vaccination, provided they then receive a second dose by 17 January 2022.
• At green, food and drink services, close proximity businesses and gyms can operate under non-CVC rules, and unvaccinated workers can return to work, however, the business must clearly display that they are not operating under CVC rules.

Face coverings:

• At green, workers in close-proximity businesses must wear face coverings when operating under the non-CVC rules.
• At orange and red, face coverings must be worn by workers in a number of businesses while in areas that are accessible to the general public or while working in close proximity with clients. Full lists are set out under Schedule 6, Part 2 of the Order (for orange) and Schedule 7, Part 2 of the Order (for red).

Businesses that fail to comply with the above requirements can be fined up to $15,000. Individuals who fail to comply can be fined up to $12,000 or sentenced to up to 6 months’ imprisonment.

The Framework also permits the Government to restrict travel from a specific region. Currently, travel in and out of the extended Auckland area remains restricted. As under the previous Alert Level System, where restrictions are in place, individuals can continue to undertake cross boundary travel for work purposes if they carry evidence of:

• the purpose of their travel and the location of their destination; and
• a negative COVID-19 test within the last 7 days or an appropriate medical certificate where the individual’s physical or other needs make it inappropriate for them to undergo a COVID-19 test.

The framework places obligations on businesses or services to minimise cross-boundary travel undertaken by workers. Certain businesses or services must facilitate testing and medical examination for workers undertaking cross-boundary travel.

Employment Law Implications of the COVID-19 Response (Vaccinations) Legislation Act 2021

Statutory right to terminate employment of unvaccinated employees

The Act gives a statutory right to terminate the employment of unvaccinated employees if:

• 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.

The employer is required to give written notice specifying the date by which the employee must be vaccinated (and the employee must have remained unvaccinated by that date).

If the employee is not vaccinated by the specified date, the employer may terminate their employment by giving the greater of four weeks’ paid notice or the notice period specified in their employment agreement.

In doing so, the employer must have ensured 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.

Employers are still required to comply with their good faith obligations under the Employment Relations Act 2000 in terms of fair process and the employee will still be entitled to raise a personal grievance in relation to their dismissal. The majority of litigation seeking to challenge a dismissal for refusing to be vaccinated has, to date, been unsuccessful. However, in WXN v Auckland International Airport the Employment Court ordered interim reinstatement of an employee to the payroll (not to physically performing work) where the Court considered it arguable that procedural steps by the employer were not consistent with its obligations of fairness and reasonableness.

Reasonable time off to be vaccinated

The Act provides that employees are entitled to reasonable paid time off during their normal working hours to be vaccinated. This is provided the time off does not unreasonably disrupt the employer’s business or the performance of the employee’s duties.

Duty to keep vaccination record

Where an employee or contractor’s role is subject to a vaccine mandate (including because the employee works at a COVID-19 vaccination certificate workplace), the Vaccination Order imposes extensive record keeping obligations on the business. The business must keep a record for all affected workers containing:

• the worker’s full name;
• the worker’s date of birth;
• a telephone number and email address by which the worker may be contacted;
• whether the worker is vaccinated;
• if the worker is vaccinated, the name of the COVID-19 vaccine(s) they have received and the date(s) on which they received a dose;
• if the worker is not vaccinated because they have received a first, but not a second, dose of a COVID-19 vaccine, the latest date by which the worker must have their second dose of the vaccine;
• if the worker is not vaccinated because they have not received a dose of a COVID-19 vaccine, the latest date by which the worker must have their first and second dose of the vaccine;
• if the worker is not vaccinated in reliance on an exemption or an authorisation, confirmation of the fact and a copy of the exemption or authorisation.

As this information is personal information, an individual cannot be compelled to disclose it. However, employers are entitled to assume an individual who does not disclose their vaccination status is unvaccinated. This assumption should be put to the individual, so they have an opportunity to correct it.

As with all personal information, care must be taken that it is collected, stored, and used in accordance with the Privacy Act 2020. Information collected for the purpose of complying with the Vaccine Order should not, for example, be used to advertise to clients or customers that all workers of a business are fully vaccinated, unless each worker’s consent is obtained.

Risk assessments to determine whether it is reasonable for an employee performing a specific role to be vaccinated

The new Act recognises there may be situations where requiring vaccination for roles not covered by the vaccine mandates could be a reasonably practicable step an employer could take for certain roles.

The Act allows for regulations that prescribe a risk assessment tool businesses can use when determining whether certain roles should only be undertaken by vaccinated employees. However, employers do not need to wait for this tool to be released to commence this process. The tool may act as a helpful guide, but employers retain the discretion to use the risk assessment methodology they prefer, including current WorkSafe guidelines.

The new risk assessment tool is likely to include the following four factors, however fine tuning will happen over the next few weeks:

Under this assessment ‘vulnerable people’ are defined as people who are under the minimum age of vaccination; medically exempt from being vaccinated; or/and at a higher risk of severe illness from COVID-19.

Each role would need to be assessed on a case-by-case basis. It should also be noted risk assessments may change over time. For example, community spread, or open borders may impact a risk assessment.

Where an employer considers an employee to be ‘high risk’, consideration should still be given to whether there are other reasonable steps that could sufficiently manage the risk. For example, it would likely be justifiable to require staff working in high-risk areas to be vaccinated such as those where social distancing is not possible, and where they would have exposure to high volumes of people. However, this should not be automatically assumed, given public facing businesses have operated successfully to date using other appropriate measures (e.g. PPE, hygiene measures, distancing, infection controls and other health and safety practices). A vaccine will supplement these practices, but will not replace these measures. Vaccinated people can still catch, and spread, COVID-19.

If the risk assessment determines it is reasonable to require an employee to be vaccinated to perform the role, and an employee is not vaccinated, employers must undertake a good faith consultation process with the employee before making any changes to their role or how they work, or terminating their employment.

The employee should be provided with all relevant information, including the risk assessment for comment. Employers should engage with the employee regarding their decision not to be vaccinated. If the employee remains unwilling to be vaccinated, the employer should engage with the employee regarding alternative options. Potential options could include working from home (if the role allows it), reassignment or redeployment to alternative duties.

Requiring Vaccination for New Employees

Now that all New Zealanders (over 12) have had a reasonable opportunity to get vaccinated, employers can make it a condition of employment for a new employee to be vaccinated.

Prospective employees may have legitimate reasons not to be vaccinated. Refusing to employ someone who is unvaccinated due to a prohibited ground of discrimination could be unlawful (although there may be exceptions on health and safety grounds).

We recommend assessing each case on its own merits as broad policies (e.g. ‘no jab, no job’) could amount to direct or indirect discrimination. If, but for being unvaccinated, the prospective employee would have progressed in the application process, employers should seek to understand the prospective employee’s reason for being unvaccinated. Consider whether the role requires the person to be vaccinated on health and safety grounds, or if other safety measures (e.g. PPE, hygiene measures, infection controls) would suffice. The reason for not hiring the person should be carefully recorded, with any health and safety assessment noted. If a prospective employee has not been vaccinated but intends to, employers may impose a clause stating they must have received their first vaccine within a reasonable period of time, such as four weeks, and their second within a reasonable time of having received the first.

Given the rapidly evolving nature of this area of law, we encourage clients to reach out to a member of the Dyhrberg Drayton Employment Law team for advice regarding any specific situations.