Vaccination mandate helps protection against Covid but employee rights prevail

Sourced from Employment New Zealand
Wellington, December 21, 2021

The New Zealand government has mandated that work be done by vaccinated people in specific sectors or business types.

These include (a) Border and Managed Isolation and Quarantine facilities (b) Health and Disability Sector (c) Education Sector (d) Work in Prisons (e) Food and Drink services (excluding businesses operating solely as Takeaways) (f) Events, proximity services and indoor exercise facilities like gyms (g) Work at Tertiary Education premises (only at the Red level of the Covid-19 Protection Framework) (h) New Zealand Police (sworn members, recruits and authorised officers) (i) New Zealand Defence Force (Armed Forces and civilian staff).

Close Proximity Services are defined as those that cannot be done without the proximity of less than one metre between people. Examples: Hairdressers, Nail Salons and Tattoo Parlours.

Determining Vaccination mandate

Outside of government vaccination mandates, businesses can assess whether specific work in their workplace requires vaccination if a risk assessment identifies this is necessary for work health and safety purposes.

To assess whether work needs to be done by vaccinated workers, employers may use a health and safety risk assessment process that they consider more suitable for their business.

Businesses can also use the Vaccination Assessment Tool to make decisions about vaccinations in the workplace. This has been made through regulations under the Covid-19 Public Health Response Act 2020.

Use of the tool is optional, and businesses can still choose to undertake a risk assessment approach. The tool will not override any risk assessments that have already been done.

Other reasons for requirement

There may be situations where a third party imposes a condition on its engagement with an employer, for example to only deal with the employer’s workers if they are vaccinated, or to only allow vaccinated workers onto its premises. This may arise where an employer’s workers provide services to a third party.

As long as these vaccination conditions are not unlawful, or in breach of any agreements between the parties, the employer must ensure their workers are vaccinated to keep doing business with the third party.

This means that an employer may need to consider which of its workers engage with the third party based on their vaccination status. An employer may also rearrange their business to ensure that its workers who are assigned to engage with the third party are vaccinated.

(Supplied by Employment New Zealand)

Supporting employees to get vaccinated: Communicate early and openly and in good faith. Employers, employees and their representatives should communicate early and openly about workplace vaccination requirements. The duty of good faith in employment relationships and consultation requirements under the Health and Safety at Work Act also apply to conversations with all workers, not just employees.

Employers must be open and communicative and respond to workers in good faith where issues are raised by workers, including related to vaccination.

Talking to employees about the Covid-19 Vaccination: If there are any practical barriers to accessing vaccination, employers should help address these. Some employees may have individual health concerns or other reasons for needing support.

Employees may have questions about the vaccine. Employers can help them by directing them to official sources for accurate information.

Before any vaccine is approved for use in New Zealand, it must meet international standards and local requirements for quality, safety and efficacy.

This does not mean employers need to debate or provide detailed answers to questions about the vaccination, its safety, and its effectiveness as a control against infection, transmission and severe illness. Where detailed medical questions are raised, an employer can rely upon expert public health advice for those matters and can point employees who are concerned to that information.

Employers should consider providing an employee with access to someone who can deliver this advice in a way that is readily understood if that was reasonable and practicable in the circumstances. This could include a medical practitioner.

 

Warning against misinformation

Sharing vaccine misinformation could, in some circumstances and some workplaces, potentially amount to misconduct in the workplace. Employers should seek legal advice before taking any action for such conduct.

Requirement to provide paid time off to get vaccinated: Employees are entitled to reasonable paid time away from work during their normal working hours to receive a dose of a Covid-19 vaccine as long as providing the time off does not unreasonably disrupt (a) their employer’s business or (b) the employee’s performance of their employment duties.

Before attending a vaccination appointment during work hours, an employee must let their employer know (a) the date and time they intend to receive a vaccination and (b) the amount of time that they expect to take as paid time off in order to receive that dose, including travel time.

If the proposed date or time would be unreasonably disruptive, the employer and employee should seek to agree on a different date or time.

In agreeing on what time off is reasonable, employers and employees should consider things like (a) the location of the nearest vaccination centre (b) the availability of appointment times (c) transport options and travel time and (d) the 15-minute monitoring time after a person has received a vaccination.

(Photo Courtesy: Employsure)

Developing Workplace Policy

Employers may opt to develop a workplace policy that indicates when they will consider it reasonable to take time off to be vaccinated so that they do not need to consider employees’ notifications on a case-by-case basis.

Employers do not need to record this leave in their payroll system, but it is a good idea to record that the employee took this leave in case there is a dispute.

An employer must pay their employee for the time in question at the rate of pay that the employee would otherwise have received if the employee was performing their ordinary employment duties during that time. If an employee arranges vaccination outside of their ordinary working hours, they are not entitled to paid time off.

Paid time off to receive a Covid-19 vaccination is a separate entitlement to what employees get under the Holidays Act 2003. That is, employers cannot ask employees to use annual or sick leave to get vaccinated. If an employee suffers side effects because of the vaccination, any time they take off to recover can be taken as sick leave.

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