Can Unvaccinated Workers Get Their Jobs Back?

On 23 March 2022, the Government announced a change to the vaccine mandates, removing requirements for employees in certain roles to be vaccinated. Former employees who were dismissed under the previous scheme due to their unvaccinated status may be wondering if they can get their previous jobs back. We explain the legal position in this article.

We clarify the following terms:

  • vaccine mandate’ refers to mandatory, government-imposed vaccine mandates covered by the COVID-19 Public Health Response (Vaccinations) Order 2021.
  • vaccine requirement’ refers to voluntary, employer-imposed vaccine requirements for workers, which may only be introduced after the employer conducts a health and safety risk assessment.

New vaccine mandate requirements

From 11:59 pm Monday, 4 April 2022 the following workers are no longer subject to vaccine mandates:

  • education sector staff (including early childhood education, schools, tertiary education premises);
  • staff at workplaces where the My Vaccine Pass is used (including restaurants and bars, gyms, events);
  • Police; and
  • Defence Force.

Workers who continue to be covered by a vaccine mandate include:

  • border and MIQ workers;
  • health and disability sector workers (including aged care workers); and
  • prison staff.

Note: some roles at Fire and Emergency New Zealand will still be covered by the vaccine mandates ‘on the basis that the role may require an individual to be within 2 metres, for more than 15 minutes, of a Health Practitioner providing health services to the public and/or work in education services where there is contact with children or students’.[1]

If a worker is not covered by a vaccine mandate, employers can conduct their own health and safety risk assessment to determine if a particular role should be performed by a person who is vaccinated, in order to comply with the Health and Safety at Work Act 2015. If a risk assessment determines a role requires vaccination, employers can maintain or implement a vaccine requirement.

Employers may terminate the employment of an unvaccinated worker if it is determined the role requires vaccination (either due to an applicable mandate or the completion of a health and safety risk assessment). However, employers must first consider all reasonable alternatives and follow a good faith consultation process.

Can unvaccinated workers get their jobs back?

Workers who have been dismissed due to their vaccination status do not automatically get their jobs back once the mandates are lifted. If the notice of termination was based on the law at the time and the process included a proper assessment and consultation process, termination will be justified. The current tight job market in New Zealand means some employers are approaching past employees to see whether they would consider returning. However, there is no legal obligation for employers to make such an offer.

The situation is different for employees subject to a vaccination mandate who were still working out their notice periods at the time the mandate was lifted. They are still employees, and good faith obligations still apply. Under the Employment Relations Act this dismissal is automatically cancelled and has no effect, unless this would unreasonably disrupt the employer’s business.

This may include the situation where a new person has been recruited to replace an unvaccinated employee who is still on a notice period. Here good faith obligations are owed to all staff, including those hired who may not have started work yet. In this situation, it would be sensible to get legal advice.

Should employers be concerned about former workers challenging their dismissal?

Employees can raise a personal grievance claim if they believe they have been unjustifiably dismissed or disadvantaged due to their employer’s decision regarding vaccination.

Just because a vaccine mandate has been removed, it does not automatically mean an employer’s past decision to dismiss an unvaccinated worker will be considered unjustified. The assessment of whether a dismissal is justified is based on the employer’s actions in the circumstances at the time of the dismissal. Therefore, it would be difficult to challenge the substantive justification (i.e. the reason for) such a dismissal. However, an employee can still challenge a dismissal on the basis the vaccine mandate did not apply to them, or the process followed was flawed. In these types of cases, the remedy may be reinstatement and/or compensation, depending on the circumstances.

Can employers maintain vaccine requirements?

Employers currently having vaccination requirements should review their health and safety risk assessments to determine whether roles still require vaccination. Employers should:

  • consider what aspects of business have changed since the risk assessment was last carried out;
  • consider the latest Ministry of Health advice about COVID-19 and its variants;
  • examine the COVID-19 risks for specific roles, not just the risks to the workplace as a whole;
  • engage with employees and their union/representatives and ask for feedback throughout the process; and
  • consider what controls can be introduced to mitigate risks (e.g. social distancing, mask use and rapid antigen tests).

Employers will have a stronger basis to require employees to be vaccinated when the risk of contracting and transmitting COVID-19 is higher at work than in the community. If, for example, the role involves close contact and customers are vulnerable, there will be a stronger basis for requiring vaccination.

What if an employer has started the process of introducing a vaccine requirement?

If an employer has created a vaccine requirement and processes are underway to terminate a worker’s employment, we recommend employers immediately pause any employment processes they have initiated. The employer should review their health and safety risk assessment as outlined above.

How should employers handle recruitment of new staff?

Employers must clearly signpost what its workplace vaccine requirements are during recruitment. Employers can tell candidates the role requires a declaration of vaccination status, provided this is justified on health and safety grounds. Employers can then require a declaration about vaccination status prior to the commencement of employment. Care must be taken to ensure questions do not give rise to a risk of a claim of unlawful discrimination (e.g. on the grounds of disability or religious belief).

Employment policies and agreements should reflect workplace vaccine requirements. Our team can assist with any aspect of assessments, recruitment or documentation, or advise if difficult situations or personal grievances arise.