With employers only just getting their heads around the vaccine mandate Order for the health and education sector, the Government is moving forward with the new COVID-19 Protection Framework, better known as the Traffic Light System. The new system includes a vaccine mandate for employees at any business where customers are required to show a COVID-19 Vaccination Certificate, like close-contact businesses, hospitality and gyms. The mandate also includes events and gatherings. Employees subject to the mandate will need to have their first dose by 3 December 2021 and must be fully vaccinated by 17 January 2022. For other businesses, there will be a risk-based approach to determine whether they can require their staff to be vaccinated.
Some employers may be able to mandate vaccines if, following completion of the Government's new risk assessment tool and consultation with employees, it is determined that the work needs to be carried out by a vaccinated employee for health and safety purposes. Employers must continue complying with the relevant employment law provisions to ensure the process is fair and undertaken in good faith.
If an employer decides to implement a vaccine requirement for certain roles, and there is a non-vaccinated employee in such a role, the Government will be requiring that the employer gives four weeks' notice to the employee if their contractual notice period is less than that. As we have been saying all along, normal employment law obligations still apply, and employers must still demonstrate good faith. New legislation introduced by the Government this week will impose stringent obligations on employers regarding how they go about these processes.
What should employers be doing now?
With New Zealand moving to the Traffic Light System at 11:59pm on 2 December 2021, employers need to be preparing now. Don't leave it to the last minute.
Start completing risk assessments, if you haven't already. While the final wording of the new risk assessment tool won't be confirmed until the Government can introduce a new Order under the legislative amendments being passed this week, you can still move forward using the wording used in Government announcements. The four factors for justifying mandatory workplace vaccination overlap with the risk assessment questions already issued by WorkSafe. In the meantime, using WorkSafe's guidelines for risk assessments, and tailoring the wording where necessary, will help employers to prepare, in line with current Government advice, for the next round of mandates.
Secondly, employers need to begin the employee consultation process. Employers do need to consult with their employees before making changes to their terms and conditions of employment. This process is specific to each workplace and requires considering the nuances of different roles, redeployment opportunities and timing. With a 3 December 2021 deadline for many employers, starting consultation should be a priority.
Thirdly, employers should begin preparing vaccination policies which set out the various risks for parts of the organisation and the proposed approach to mitigating those risks for the specific workplace. Again, employees will need to be informed of this, but employers can make a start on this work, ahead of the consultation process.
It is important to remember that these processes need to be robust to effectively comply with relevant employment law provisions and, therefore, take time. So, start now as it is not possible to impose requirements at short notice. Employers should ensure that everything is ready to go when the lights turn "orange" and "red" in December.
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