Employers’ legal obligations towards unvaccinated workers

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The government has mandated jobs for Vaccination (ENZ Photo)

Sourced Content (Edited)
Wellington, December 27, 2021

Although New Zealand has a high percentage of Vaccination against Covid-19, there is a minority who are hesitant to get the job. Some vocations are mandated, meaning that workers in these sectors must be vaccinated.

However, New Zealand’s Employment Law is fair towards all. It is designed to protect all employees in all circumstances.

Employment New Zealand of the Ministry of Business, Innovation and Employment has extensive information on the duties of employers and the rights of employees and these cover Covid-19 and Vaccination.

Employers should take care to be fair and reasonable in their engagement with employees regarding Vaccination, and work through processes with employees in good faith before deciding on any outcome.

Implications of the Unvaccinated

Employers cannot require any employee to be vaccinated; however, being unvaccinated may have implications for an employee’s job.

If certain work can only be done by vaccinated workers, employers should set a reasonable timeframe for employees to decide if they will be vaccinated.

If an employee cannot work during this time, special paid leave should be considered, especially in the short term while employers and employees discuss what happens next.

Changing work arrangements

Employers must consider whether there are any alternatives to allow the employee to keep working without Vaccination. Employees and employers may be able to agree on changes to work arrangements (e.g. location or hours of work) or duties (e.g. job content), which could mean that Vaccination is no longer required. This outcome should be mutually agreed upon, in the absence of which independent advice may be needed.

Employers must uphold Workers’ rights (ENZ Photo)

Employers should also consider whether the tasks that require Vaccination can be deferred. For example, if an employee has a particular reason for not being vaccinated (e.g. certain medical conditions, or existing medication regimes) then this might mean certain alternative arrangements can be agreed upon for the short term, with Vaccination planned for a later date.

Procedure for Paid Leave

Employers and employees can together agree on a form of paid leave, either special paid leave or annual leave. Special paid leave should be considered, especially in the short term, when employers and employees are discussing whether an employee will be vaccinated and what will happen if the employee is not vaccinated. 

If an employer and employee cannot agree, the employer may direct the employee to take annual leave (if the employee has leave entitlements available) with at least 14 days’ notice.

An employer cannot make their employee take unpaid leave without their consent. If an employer has directed their employee to take unpaid leave, this could be seen as the employer unlawfully suspending the employee.

Restructuring work 

Employers may also consider restructuring, including redundancies, for example, if they need to meet Vaccination requirements imposed by a client. If so, employers should take care to comply with employment law, including acting in good faith and being consistent with any provisions in employment agreements.

Redundancy must be the last option, after all other options (e.g. redeployment where possible or rearranging work) have been exhausted. An employer and employee may agree to a negotiated end of employment. 

If all other reasonable alternatives that would allow the employee to keep working have been exhausted, recent changes to the Employment Relations Act require employers to provide employees with at least four weeks’ paid written notice of termination. 

It is highly unlikely to be a good faith action for an employer to direct that a worker use annual leave (if the employee has leave entitlements available) or any other entitlements that the employee has, during this paid written notice period. 

This change will only apply to employees who do not have a notice period, or whose notice periods are shorter than four weeks. If an employee has a notice period longer than four weeks in their employment agreement, that longer notice period will continue to apply.

If employees get vaccinated or are otherwise permitted to perform work under a Covid-19 order during this four week notice period, the termination notice is cancelled, unless this would unreasonably disrupt the employer’s business. For example, where a business has hired a replacement employee and there is no other work available in the business.

If an employee loses their job because they decide not to get the Covid-19 Vaccination, there may also be support available from Work and Income.

Disputes Resolution

Normal Employment Law and processes continue to apply in the case of disputes.

Employers should take care to be fair and reasonable in their employment decisions and work in good faith with employees and unions before deciding on any employment outcomes.

Employees will be able to bring a personal grievance if they feel they have been unjustifiably dismissed or disadvantaged as a result of a decision their employer has made about Vaccination.

Employers and employees can access support from MBIE’s mediation service to resolve employment problems.

Should mediation not resolve the dispute, the Employment Relations Authority or Employment Court can determine the issue.

Source: Employment New Zealand

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