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Wellington, November 10, 2021
The government has announced new legislation outlining workplace vaccination requirements, taking the next step in stopping the spread of Covid-19.
It has also issued guide decisions on the vocations that need vaccination.
To align with the recently announced Covid-19 Protection Framework, the government will mandate vaccinations for workers at businesses where customers need to show Covid-19 Vaccination Certificates such as hospitality and close-contact businesses. Discussions are also being held with businesses and unions as to when this mandate will come into effect.
According to indications, the new legislation will be in force by the end of November.
Risk Assessment for others
For businesses where a government vaccine mandate is not in place, the law will include a risk assessment process for employers to follow when deciding whether they can require vaccination for different types of work. This will cover factors like who workers interact with during their workdays and how close that contact is, as well as ensuring our critical infrastructure and lifeline utilities can continue even if there has been exposure to Covid-19 in the workplace.
This risk assessment will build on guidance already provided by WorkSafe.
How to decide what work requires a vaccinated employee – WorkSafe(external link)
The legislation will also include provisions for paid time off for employees to get vaccinated, helping raise workplace vaccination rates.
For Anti-vaxxers employees
If an employee chooses not to get vaccinated for work that requires it, the Employment Law will still apply. Employees and employers must continue to deal in good faith. Employers must still consider all reasonable alternatives, such as finding other work within the business that does not require vaccination.
The law change will introduce four weeks’ paid notice for any employee who has their job terminated because they are not vaccinated, and whose job requires it.
The legislation is expected to come into effect in December and further guidance will be published earlier. While the proposed legislation is not yet in effect, you can start assessing your workplace and vaccination requirement options using the guidance provided by WorkSafe. Just like with health and safety assessments, employers will have to consult workers and their representatives when using this risk assessment process.
The Vaccination Campaign
New Zealand has embarked on its largest-ever vaccination campaign, which will provide free Covid-19 vaccines for everyone in Aotearoa. Safe and effective vaccines are essential to protect New Zealand and our Pacific neighbours from the pandemic.
Workplaces play a key role in supporting our vaccination campaign, and the Covid-19 vaccine raises some important employment and health and safety questions.
Businesses, workers and their representatives should communicate early and openly. The duty of good faith in employment relationships and consultation requirements under the Health and Safety at Work Act also apply to conversations about workplace vaccination issues. Businesses and workers can access support from the Early Resolution Service of the Ministry of Business, Innovation and Employment (MBIE) to resolve employment problems early and informally.
Three elements of Good Faith
Good faith includes the following three elements: (1) Parties must not act in a misleading or deceptive way (2) Parties must be responsive and communicative (3) Before making a decision, which may result in employees losing their job, the employer must give the affected employees sufficient information to be able to understand the proposal and then give them a proper opportunity to comment.
Good faith is also wider than this. It is more than just following the letter of the law. It involves treating others fairly using common sense. Broadly, good faith requires employers, employees and unions to (a) act honestly, openly, and without hidden motives (b) raise issues in a fair and timely way (c) work constructively and positively together (d) give each other relevant information ahead of when it is needed and as soon as possible, all information given should be carefully considered (e) be fully honest with each other (f) raise concerns or issues as soon as possible and respond to these quickly (g) keep an open mind, listen to each other and be prepared to change opinion about a particular situation or behaviour (h) treat each other with respect.
There are specific rules surrounding good faith during collective bargaining.
Consequences of breaching good faith
Where an employer does not follow the rules of good faith an employee may take a personal grievance. Where the Employment Relations Authority or the Employment Court find that good-faith rules were not followed by the employer then they may award a penalty for a breach of good faith.
Source: Employment New Zealand, Ministry of Business, Innovation and Employment
