News & Thinking

The End of the Mandate…

Contributed by:
Giuliana Petronelli

Giuliana Petronelli
Associate

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Giuliana Petronelli


After the decision of Yardly[1], IOX[2] and the wide spread community transmission of Covid-19, we waited with baited breath to see what changes the Government would make to the Covid-19 Protection Framework and the government vaccine mandates in both the private and public sector (Vaccine Mandates). 

The Government announced that as of 4 April 2022, Vaccine Mandates continue to apply for all health and disability sector workers (which includes aged care workers), prison staff and border and MIQ workers. However, all other sectors that were previously subjected to government vaccine mandates such as; education, events, hospitality, Police and Defence are no longer required to be vaccinated to carry out such work.

The Government has made it explicitly clear that as of 4 April 2022, all businesses or workplaces that are no longer covered by the Vaccine Mandate must now conduct risk assessments to consider what controls are appropriate and are no longer able to use government vaccine mandates to justify taking employment action against unvaccinated employees.

Those businesses that relied on risk assessments to introduce vaccination policies, should now review those risk assessments, taking into careful consideration the new WorkSafe guidance and revised public health advice.

Given that Vaccine Mandates no longer apply to a number of workplaces, New Zealand has high vaccination rates and there is a reduced risk of reinfection for those who have recently recovered from COVID-19; WorkSafe considers that very few workplaces will be able to justify an employer vaccination requirement on the basis of health and safety or for public health reasons. For those who can in limited circumstances, this would likely only be for specific roles where a robust workplace health and safety risk assessment has been conducted, and the risk of contracting COVID-19 is deemed higher in the workplace than in the community (for example through interacting with border workers or with those at greater risk). Alternative controls must be considered and employers must consult with their employees and/or their representatives to meet their legal obligations.

Termination process underway?

Now is the time to pause that process (immediately). Employers are encouraged to review, update and utilise their workplace health and safety risk assessment to determine their level of risk and consider the extent to which controls, other than vaccination can manage that risk in conjunction with the most recent public health information and advice. This is a changing landscape, therefore it is imperative that the workplace health and safety risk assessments morph and develop to reflect such changes.

Terminated already…

If an employer has already terminated an employee’s employment on the basis of a government vaccination mandate or employer vaccination requirement which predated 4 April 2022, that decision still stands. A former employee does not have a right to get their employment back, or any other role with their previous employer. However, this does not prevent an employer who is no longer covered by a government vaccination mandate to offer a previous employee, who remains unvaccinated, a position with them, where they have suitable vacancies.

New Employees…

An employer who wishes to may make vaccination against Covid-19 a condition of employment for a new employee or an existing employee moving to a new role may do so in certain circumstances, namely, where it can show that it has a genuine requirement for doing so and alternative options to vaccination do not sufficiently mitigate risk. It is important that where an employer has such a condition of employment that it ensures that it does not breach any legal requirements such as the New Zealand Bill of Rights 1990 and or the Human Rights Act 1993.

Whichever situation you find yourself in, we suggest that you seek targeted legal advice so as to support the next steps for you and your business in light of the ever-changing Covid-19 landscape.

[1] Yardley v Minister for Workplace Relations and Safety[2022] NZHC.

[2]  IOX v QEB [2022] NZERA 77.