EMPLOYMENT LAW JACK RAINBOW
Vaccine mandates New Zealand is in a new phase of its COVID-19 response, with the Delta variant entering the community, and the government strategy shifting away from elimination. There is a sharp focus on vaccinations as the primary means of protection. This poses challenges for employers across the motu, who want to ensure their staff are safe and protected from the virus, and their business is well protected from the potential shocks of a workplace outbreak.
The starting point is that an employer is entitled to introduce lawful and reasonable workplace policies, in accordance with its inherent right to manage its workforce and its duty to take reasonably practicable steps to provide a safe workplace. In the absence of a legislative mandate that requires your workforce to be vaccinated (or in addition to it), an employer could implement its own vaccination policy; and, if it can establish, on health and safety grounds or some other grounds, that a vaccinated worker must do the work, we consider it is likely an employer could include mandatory vaccination in its policy.
What would a policy include? Mandatory vaccine order
Large proportions of the New Zealand workforce are now covered by a mandatory vaccination order, which legally requires our health and disability workers, border workers, correction officers and teachers to be vaccinated in order to perform their roles. However, most New Zealand workers are not covered by this legal mandate. So what options are available to employers?
Could I implement my own vaccination policy? The short answer is ‘yes’.
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HUMAN RESOURCES
SUMMER 2021
A vaccination policy could include: • when and why an employer may collect information about the vaccination status of its employees, including how it will be stored and used • the employer’s approach to recruiting for new roles, and whether it will endeavour to recruit vaccinated staff, and, if so, how it will manage that process • when mandatory vaccination may apply • if mandatory vaccination will apply, which roles it will apply to, the process the employer will follow for unvaccinated employees, and the timeframes
given for obtaining vaccination • the process that will be followed wherever someone seeks an exemption from vaccination requirements (eg, for medical or other reasons), and the alternatives that will be considered.
What is the process for implementing a policy?
• Consistent with the duties of good faith, employees who will be covered by the policy should be consulted on the policy before it is introduced. This will include: – advising employees of the reasons the policy is being introduced – providing employees with any evidence you have relied on. This will include a client directive where that is being relied on, a copy of the mandatory vaccination order or government vaccination certificate requirements if that is the basis, or a copy of any risk assessment that has been carried out if health and safety is the reason for the policy – seeking employee (and union, where applicable) feedback on the draft policy, especially on the reasons for the introduction of the policy, the parameters of its application, and the consequences of noncompliance with the policy.
