Traffic light system and mandating vaccinations in the workplace

Employment law in the COVID-19 space is moving at warp speed, and we are here to give you the latest updates as they become available.

In short:

  • The Government is implementing a new traffic light system (called the ‘COVID-19 Protection Framework’) to assist New Zealand in tackling the COVID-19 pandemic and afford the country greater freedoms of movement and operation. You can read more about the Framework here.
  • In summary, the Framework will:
    • Take effect once 90% of eligible New Zealanders for each District Health Board are fully vaccinated (i.e. have received both doses of the vaccine);
    • Likely require record keeping and scanning for all businesses at all levels;
    • Only restrict regional travel at Red; and
    • Involve mandating vaccination certificates for various businesses/ events/ organisations including ‘close contact businesses’ (this term is yet to be formally defined). The list of businesses/ events/ organisations grows longer as the traffic light system escalates up to Red.
  • The Government has confirmed that where a vaccination certificate is mandated for a business under the Framework, this will also apply to the employees/workers within that business.
  • If a business does not want to require a vaccination certificate there will be strict limits on capacity and space. The business may also be closed at the Orange and Red levels.
  • New legislation is set to be released in November 2021 and come in to force in December 2021, which will:
    • Clarify which additional roles must be performed by a vaccinated person;
    • Provide a health and safety risk assessment process for employers to determine whether they can require additional roles (who are not required by law to be performed by a vaccinated person) to be performed by a vaccinated person:
      • It is reported this assessment will build on the WorkSafe health and safety risk assessment guidance provided to date. You can read more about the WorkSafe guidance here;
    • Afford paid leave for employees to get vaccinated; and
    • Introduce a mandatory four week notice period for any employee whose employment is terminated because they are not vaccinated and their role must be performed by a vaccinated person (noting that all usual employment laws will still apply when terminating an employee in this circumstance, including meeting all good faith obligations and exploring all reasonable redeployment alternatives prior to termination).

If you do not intend to wait for release of the new legislation, then you can use the WorkSafe guidance (linked above) to assist you in determining which roles (if any) in your business should be performed by a vaccinated person.

If you wish to take this approach, we recommend that you seek legal advice before implementing a mandatory vaccination policy in your workplace (noting that WorkSafe and Employment New Zealand are clear that you must follow a robust consultation process with your employees (and Unions, if applicable) before implementing such a policy).

We will keep you updated as this matter evolves and further details are released. 

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