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COVID employment law complexities

November 22, 2021

Anne Wilson Partner
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Why faster isn’t always better when setting workplace policy.

 

The fallout from COVID has created some of the greatest societal polarisation in living memory, and as New Zealand adjusts to the realities of living with the virus, workplaces are often at the forefront of the debate.

 

Vaccination and mask mandates, the prospect of a return to physical workplaces for those presently operating remotely and privacy considerations are just some of the things keeping employers up at night, and the experience of countries who are further on in their living-with-COVID journey tell us the issues only get more complex as time goes on.


COVID brings a heavy emotional charge and no easy answers. Often, employers are weighing the best of two equally unpalatable options. As the pressure for certainty intensifies, it’s tempting to make a decision – any decision – fast.

 

Like so many other workplace matters, the answers are not always straightforward. For those not covered by the compulsory vaccination order, consultation is required if employers want to put a ‘no jab, no job’ policy in place and before terminating employment on the basis of vaccination status. Many of the areas impacted by the pandemic are not black-and-white. And, they go a lot further and even longer term than the employees providing feedback on the decision today.

 

There are many other questions to ask beyond the legal, commercial and ethical ones, and they speak to something much closer to home: organisational culture.

 

So when I am helping employers weigh their options, here are some of the questions I’ll ask: do you know how your staff are feeling about the approach you’re considering? Have you thought about how it will impact staffing levels and workplace culture? And what are the ramifications for your business beyond the short-term?

 

COVID is changing what it means to be an employer of choice – and no matter the solution, it is unlikely to keep all of the people happy, all of the time. For sectors where there is no government mandate, policies like’ no jab, no job’ not only impact existing staff, but colour the way potential applicants see a company, too. 

 

The issues around COVID are divisive, personal and polarising, but they can’t be left unresolved. Organisations have obligations to all their employees: those who can’t be jabbed, those who choose not to, and those who remain vulnerable even once fully vaccinated. 

 

Employers who are doing well in these times are those who listen first and who have a good understanding of how staff feel before making, and sharing, changes. They ensure decisions are made with staff, not in isolation from them, and that those decisions are congruent with the organisation’s values and culture. When it comes time to implement changes, they do it with sensitivity and an acknowledgement of the complexities of the times. Crucially, they ensure that their actions promote cohesion, not further division, amongst their people. 

 

The fallout from the hard calls around COVID will be with us long after the virus, and are arguably amongst the most important of the foreseeable future. They deserve time, thoughtfulness and very careful consideration, and like all good business decisions, an eye on the big picture.

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