Vaccine Policies and your rights
- 26 October 2021
Have you been told there is a “No Jab No Job” policy coming at your workplace?
These are unprecedented times in New Zealand. Pandemics are not new to us, but the level of responsibility being placed on private employers to deal with it, is.
The New Zealand government has, to date, left the majority of the responsibility to keep workplaces safe from Covid-19 on Employers, and some are now looking to ensure public safety with their own vaccine policies.
No employer can demand any one person be vaccinated, however, they can, after careful consideration, decide that the role they offer, requires a vaccinated person to carry it out, due to the risk inherent in an unvaccinated person (more on this below) and that person’s interaction with the public and/or vulnerable members of the community.
A legal vaccination policy in a place of employment is one that is developed with Health and Safety in mind, taking into consideration the good faith requirements found in the Employment Relations Act.
There are three steps an employer MUST take before undertaking to dismiss someone for being unvaccinated:
First, the employer must create a vaccination policy.
Secondly, the employer must undertake a thorough safety assessment on all employment positions.
Thirdly, a thorough consultation must be in engaged in, along the lines of any redundancy requirement. This mean consulting with all staff and consulting with every staff member regarding redeployment if they are vaccine hesitant.
If you have been told there is a Vaccine Policy coming in at your work, and you have been asked for feedback, you should ask to see the Risk Assessment undertaken for your specific role. When you have this, please check that it is:
A: Correct for the role you do; check that it is correct when it assess the risk the person in the role may contract Covid-19, and;
B: That it is correct in terms of assessing that the role poses a high risk for widespread community transmission, and/or;
C: Whether the role interacts with vulnerable people who are at serious risk of illness.
Please get in touch with us if the Risk Assessment does not match your role and to discuss if the Risk Assessment was done properly.
You should also check if the employer has assessed what other controls are available to mitigate or eliminate the risk of Covid-19 spread, and whether there is any alternative, low risk roles instead. If you think you have a genuine medical reason to avoid the vaccine, please talk to your medical provider then discuss this with your employer, showing them the medical certificate stating your allergy to the vaccine.
We can help assess this with you and offer a free initial consultation
Please note: this advice is subject to change with Alert Level Changes. New legislation has been announced stating the Worksafe guidance (linked below) is now what will be the legal requirements when undertaking a risk assessment.
Mandated Vaccinations:
An employer is duty bound to ensure only vaccinated staff fill roles covered by a COVID-19 Public Health Response (Vaccinations) Amendment Order 2021, but at present this is restricted to only apply to port and border, MIQ, health aged care and education positions, and prison workers. This Amendment came into effect on Tuesday 26 October and means that from 1 January, 2022, employers with employees covered by the mandate will need to keep a register, and ensure only vaccinated staff are employed. They need to have their first dose by 15 November. Those who are not fully vaccinated in the period leading up to 1 January 2022, will also be required to undergo weekly COVID-19 testing.
As at 26 October Vaccine Mandates are now in place for all employees at businesses where customers need to show Vaccination Passports; this includes hospitality, all large events, close contact businesses such as hairdressers, and gyms. This will come into force when the Traffic Light system comes into force nationwide, which is predicated on vaccine numbers. This may be extended to public service roles and other roles deemed appropriate for a mandate.
An employer can apply for an employee or employees to be exempt from this mandate. Contact us to discuss this further.
The information on mandates is being updated on a weekly basis by the Government so check back here to see if this changes.
The rest of the employers in New Zealand have, at this stage, been left to decide if they want to mandate privately for vaccines in their workplace. There has been some legal guidance on this by way of a recent case in the Employment Relations Authority: GF v NZ Customs Service [2021] NZEMPC 162. This case was addressing a personal grievance raised by a non frontline worker who was subject to the government mandate, and chose not to vaccinate and thus was dismissed.
The decision stated that NZ Customs were, in accordance with the Health and Safety laws, required to protect all people who interact with its business. It emphasised the three points above, stating a thorough risk assessment must be undertaken for each role it requires vaccinated. The grievance was unsuccessful and NZ Customs were commended on their consultation with the employee.
Significantly, the Authority stated that an unvaccinated person was a risk factor in the workplace. Until replaced by legislation or a higher judiciary determination, this decision is current law.
Employees need to be aware that they may risk losing their jobs if they choose to stay unvaccinated, and employers must now take responsibility for an unvaccinated employee who may put others at risk. Once the decision to terminate has been made, the employee must be given four weeks notice, irrespective of the notice period in there employment agreement. If the employee gets vaccinated in that period (and it is yet to be announced if that means double vaccinated), then they can keep their jobs.
If you have lost your job due to a mandate by a private employer and think the risk assessment was not valid, think they did not provide you with the correct information, or looked for any alternative roles for you, please contact us to discuss your case.
For further information please check these links: