Employment Alert: New COVID-19 legal changes set to affect all businesses

November 2021

On 23 November 2021 the COVID-19 Response (Vaccinations) Legislation Act (Act) was passed. The implementation of this new legislation, coupled with the move to the ‘traffic light’ system next week, brings with it significant changes which will affect all businesses. While there is still quite a lot of uncertainty, we set out below some answers to immediate questions based on what we know at this stage.

My business is required to operate using My Vaccine Passes – what does the new Act mean for us?

The new Act will the existing COVID-19 Orders to require that certain kinds of businesses only allow access to those who present My Vaccine Passes. The Government have indicated that close contact businesses, gyms and hospitality will be required to use My Vaccine Passes.

If you are a business which is required to operate using My Vaccine Passes, then it will also be a requirement for your employees to be vaccinated.

Failure to comply with the requirements to use My Vaccine Passes could result in a business being charged with an infringement offence, attracting fines of up to $15,000.

My business if not required to use My Vaccine Passes – can we still require vaccination?

Other businesses can require that staff be vaccinated if they are carrying out work which presents high risk of spread of COVID-19. This is assessed on a health and safety basis, using a risk assessment process. This requires an assessment of the level of risk presented by each role within the business, not a blanket approach. If a particular role presents a low risk of spreading COVID-19 then this provision will not allow you to require that a person be vaccinated to carry out that role.

The Government has announced four criteria which must be met, before a business can otherwise require their staff to be vaccinated. These are:

• Employees who are in an area with less than 100m2 indoor space.
• Employees who work less than 1m apart from other people.
• Employees who are routinely near others for more than 15 minutes.
• Employees who provide services to people vulnerable to COVID-19.

WorkSafe NZ have also provided some guidance on what this risk assessment must consider. We can provide assistance and advice in undertaking this assessment.

The risk assessment should be done in consolation with staff and shared with them for their comment. If there are other measures that can be put in place, such as distancing, use of PPE or working from home, these should be considered and implemented if they would reduce the risk of spread and are practicable.

What if my business requires employees to be vaccinated and they are not?

The Act introduces new grounds which allow employees to be terminated if they are not vaccinated and there is a requirement for them to be – either as a close contact business or if it is a high-risk role.

Under this new legislation an employer must give the employee reasonable written notice specifying the date by which the employee must be vaccinated. If the employee is not vaccinated by this date, then their employment may be terminated.

You must also ensure that all other reasonable alternatives short of termination have been considered and exhausted. This includes considering whether there are other roles or work arrangements for the employee, such as working from home.

It is important to note, an Order must apply to the role or you must undertake a reasonable risk assessment which finds that an employees role is high risk, before considering termination. Otherwise, it will be difficult to defend your position if that employee brings a personal grievance.

A blanket vaccination policy is only permissible if you obtain consent to that policy from your employees.

What if my business is not required to use My Vaccine Passes, but I want to require customers to be vaccinated?

You are entitled to vary the terms of entry to your premises and the conditions by which you will engage in-person with clients and customers. You will need to have this displayed clearly and ideally, have a COVID-19 policy available.

What should employers be doing now?

We recommend that all employers consider the following steps:

• Review whether you are covered by the requirements to use My Vaccine Passes. If so, ensure correct procedures are in place.
• If your business is not covered, consider undertaking a risk assessment for each role in your business and consulting with employees on this.
• Put in place a COVID-19 response policy for your workplace.

How can we help?

If you have any questions on the above, or require assistance implementing any of these requirements – get in touch with our employment law team.

Sara Jamieson
sara.jamieson@tp.co.nz
021 221 7725

Elise O’Halloran
elise.ohalloran@tp.co.nz
027 768 5012

Jared Higby
jared.higby@tp.co.nz
027 238 0838

IMPORTANT: The information in this article is of a general nature only and does not constitute legal advice. Tavendale and Partners do not accept any liability for any reliance placed on the information contained in this article and shall not be liable to you or anyone else for doing something, or omitting to do something, on the information provided above.