Vaccination Mandate Order
The Vaccination Mandate Order and its scope on the workplace
Since our “no jab, no job” blog post (22 September 2021), there have been multiple amendments to the Government’s policies and procedures surrounding COVID-19 and vaccination in the workplace. This is in line with the ever-evolving nature of the virus.
Mandatory Vaccinations Order
The COVID-19 Public Health Response (Vaccinations) Order 2021 (“the Order”) was introduced to prevent and limit the spread of COVID-19 in New Zealand. Under the Order the Government has mandated that certain roles can only be undertaken by those who are vaccinated (and have received a booster dose). This includes: Health and Disability, Education, Emergency services, Defence and Corrections, and Border workers.
In December 2021, the Order was expanded to include a vaccination mandate for all workers at businesses where customers are required to show COVID-19 vaccination passes. This includes hospitality, events, gyms, and close contact businesses.
Workers employed within the listed businesses must:[1]
1. be fully vaccinated
2. take reasonable care of their own health and safety
3. sight customers’ vaccine passes and verify a reasonable number with the verifier app.
Failure to comply with the COVID-19 order is liable on conviction for up to six months imprisonment or a fine not exceeding $12,000.[2]
Employers can decide whether workers require vaccination
As per the last blog post, the Health and Safety at Work Act 2015 remains a relevant consideration in this area.
Employers may still require employees in specific areas of work to be vaccinated even if they do not explicitly fall within the scope of the Order. This relates to the duties imposed under legislation on Employers (and PCBUs) to eliminate or minimise risks to health in the workplace. The starting point is for the employer to undertake a health & safety risk assessment to determine whether requiring vaccination is a reasonable measure for their business.
The health & safety risk assessment considers the role and looks at the various risk factors included in the job. A simplified risk assessment process was developed and promulgated by the Government in December 2021. This simplified assessment directs employers/PCBUs to consider: [3]
Does the worker word in an indoor space that is less than 100m2?
Is it unreasonable for the worker to maintain 1 metre physical distancing from other people?
Is the worker in close proximity to any other person for more than 15 minutes?
Does the worker provide services to people who are vulnerable to COVID-19?
This information is then balanced to give a risk rating. If the risk rating is high, and there are no ways to reduce the risks by implementing more controls, the employer may require that the role is carried out by vaccinated employees only.
Employment options for unvaccinated employees
Employers cannot force their employees to get vaccinated. However, there may be serious implications for employees who choose not to be vaccinated, in the case that vaccination is a requirement for their role.
Employers will need to consider whether there are alternatives to facilitate continued employment for such employees. This could involve changing work arrangements (i.e. working from home) or arranging a form of paid leave. In circumstances where there is not a suitable alternative, the employee’s employment may be terminated. Upon termination, the employer must follow the guidelines outlined in the Employment Relations Act 2000 and provide the employee with at least four weeks’ paid written notice of termination.[4]
In all of the above processes, an employer must ensure that it abides by its obligations as an employer to act in good faith and consult with employees prior to making decisions.
Get in touch
There may be additional information and options available to you as an employee or employer. We recommend that you get in touch with us to discuss your rights and obligations and for a personalised assessment of the law.
[1] “Information for workers” Worksafe, updated 1 December 2021.
[2] Section 26, COVID-19 Public Health Response Act 2020.
[3] “Vaccination Assessment Tool” Business.govt
[4] Schedule 3A(3), Employment Relations Act 2000.
