COVID-19 vaccination requirements: what do employers do now?

This week the Government made changes to vaccination requirements in the workplace, removing some vaccination mandates and relaxing the use of vaccine passes. So, what does this mean for employers?

Removal of mandates

Government vaccination mandates have been removed for the following workforces:

  • Early childhood and schooling education workers
  • Workers at tertiary education premises
  • Workers of premises where My Vaccine Pass is used
  • New Zealand Police workers
  • New Zealand Defence Force workers

Government vaccination mandates will continue to apply for health and disability sector workers (including aged care workers), prison staff and border and MIQ workers. The Government has indicated that it will continue to review these mandates, in light of public health advice.

Validity of vaccination requirements in the workplace

The Government has provided advice for employers following the changes to vaccination requirements in the workplace. We have distilled this advice into 10 key points:

  1. Employers cannot rely on revoked Government vaccine mandates to justify action against unvaccinated employees.
  1. If a workplace is no longer covered by a Government vaccination mandate and the employer does not have its own mandate in place, it is the employer’s responsibility to determine whether vaccinations remain required in the workplace. Employers should undertake a health and safety risk assessment in consultation with workers.
  1. If an employer has a vaccination requirement already in place, due to its own previous health and safety risk assessment, the employer needs to review this, in light of current public health advice and in consultation with workers.
  1. An employer can still implement a vaccination requirement if a health and safety risk assessment requires it or if vaccination is required to access a third party site.
  1. WorkSafe’s health and safety risk assessment has recently been updated in light of public health advice. WorkSafe sets out “the public health justification for requiring vaccination in the workplace is stronger when the risk of contracting and transmitting COVID-19 at work is higher than it is in the community”. WorkSafe’s view is that, outside of the sectors subject to Government vaccine mandates, few workplaces will be justified to have an employer vaccination requirement that is based on health and safety or public health reasons. Employers should utilise WorkSafe’s updated factors when reviewing or carrying out a health and safety risk assessment.
  1. The Vaccination Assessment Tool in the COVID-19 Public Health Response (Vaccination Assessment Tool) Regulations 2021 is being reviewed, so the Government has advised employers to wait for this review to be completed before using this tool. In the meantime it is recommended that employers utilise WorkSafe’s updated health and safety risk assessment.
  1. If an employer is currently undertaking employment action regarding vaccination status, it is recommended that the employer pause this process and refer to updated public health advice and consult with the employee again.
  1. When hiring staff, the employer should communicate whether vaccination requirements apply or could apply in the future.
  1. The employer is under no obligation to rehire staff that left work or were dismissed due to vaccination requirements.
  1. Employers can collect information about their employees’ vaccination status for a lawful purpose, but an employee does not have to disclose their vaccination status. If an employer does collect this information, it must be held in accordance with the information privacy principles in the Privacy Act 2020.
  1. An employee can bring a personal grievance if they feel that they have been unjustifiably dismissed or disadvantaged as a result of a decision about vaccination.

This continues to be a tricky area for employers and employees alike, as both the legal and health landscape shifts, so do not hesitate to get in touch with Lane Neave’s employment team with any queries or requests for assistance.

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