Asia-Pacific employment law bulletin 2022
Developments in the light of COVID-19
In tumultuous times, we expect to see significant changes. What we have seen in New Zealand is a shift in government policy towards COVID-19 vaccine mandates in all areas of life. This has had and continues to have a profound effect on the workplace and in particular, the way we see workplace health and safety requirements.
When the pandemic hit New Zealand in early 2020, the Government responded with an elimination strategy. All borders and entry ports into New Zealand were closed and returning New Zealand citizens or residents were required to isolate for two weeks in a managed isolation facility, known as ‘MIQ’. The elimination strategy relied on strict lockdowns or restrictions if a case of COVID-19 was found in the community.
The elimination strategy was largely successful resulting in limited disruption to ways of working and employment relations. However, the arrival of the highly contagious Delta variant in New Zealand in August 2021, and its subsequent spread, caused an eventual shift in the Government’s response, away from the restrictions and lockdowns and toward vaccine mandates.
New Zealand’s initial vaccine roll-out plan intended that everyone in New Zealand be vaccinated with the Pfizer-BioNTech COVID-19 vaccine and for the general population to begin receiving the vaccine from July 2021, starting with those aged 65 or older. Some groups were prioritised to access the vaccine earlier; border and MIQ workers were able to access the vaccine in February 2021 followed by frontline health workers.
On 30 April 2021 the COVID-19 Public Health Response (Vaccinations) Order 2021 (the “Order”) came into effect. The Order required that all work in MIQ settings be undertaken by people who were vaccinated. It also applied to certain government officials in high-risk border settings. In July 2021, the Order was amended and extended to make it compulsory for most border workers including those at airports and ports to be vaccinated to carry out their role.
Following the spread of the Delta variant in the community in mid-August 2021, all of New Zealand was placed in strict lockdown. Despite this, the virus continued to spread, the Government sped up its vaccine roll-out plan and urged the population be vaccinated.
After an extended period of lockdown in some parts of the country, the Order was extended again on 26 October 2021 to cover roles that work closely with vulnerable groups which made it compulsory for health practitioners, health care workers, workers in education and prison workers to be vaccinated. Around this time, it was announced that once 90% of eligible New Zealanders had been double-vaccinated, the country would move out of the restrictions/lockdown system and into a new vaccination-focused ‘traffic light’ framework.
The new framework introduced proof of vaccination status through vaccination certificates and provided rules for different businesses to open and operate using the vaccination certificates. These included businesses which provide food and drink services; gyms, events, close contact businesses and specific tertiary education providers.
On 3 December 2021 New Zealand moved into the traffic light framework and the Order was extended further to cover workers in settings where a vaccination certificate is required.
The unprecedented Government measures and the introduction of vaccination mandates created a highly vaccinated population but has caused several employment challenges.
Employees in roles covered by the Order have been stood down or dismissed for refusing to be vaccinated in accordance with the Order. A number of these employees have brought claims in the employment jurisdiction for unjustified dismissal seeking reinstatement into their roles. The Courts have yet to decide on many of these matters. Some employees have also brought unsuccessful claims in the High Court that the Order is a breach of New Zealand’s Bill of Rights Act 1990, which contains as a fundamental right, the right to refuse to undergo medical treatment.
The vaccine-focused response has created challenges for employers that do not have roles covered by the Order. Many employers have consulted with employees and introduced vaccination policies. Some of these policies require that certain roles only be carried out by vaccinated workers and/or only allow for vaccinated workers or visitors to attend the workplace.
Under New Zealand’s health and safety legislation, employers have a duty to ensure the health and safety of its workers and to eliminate risks to health and safety so far as is reasonably practicable. If elimination is not practicable, employers must minimise those risks so far as is reasonably practicable. Accordingly, employers are required to eliminate and/or minimise the risks of infection and transmission of COVID-19 at work or in the workplace.
New legislation on vaccination
The Government has recently introduced the COVID-19 Response (Vaccinations) Legislation Act 2021 (the “Act”) which includes guidance on how employers can meet their health and safety obligations. It has also confirmed that it will be lawful to dismiss an employee for refusing to be vaccinated if the employer can show that it is reasonable for it to introduce a mandatory vaccination policy and that it followed a reasonable process in respect of the employee.
If employers want to require certain roles be carried out by a vaccinated employee and the role is not covered by the Order, they must conduct a COVID-19 health and safety risk assessment of each role and determine the risks of infection or transmission. The Act provides for a risk assessment tool that businesses may use to ascertain whether it is reasonable to require that their workers be vaccinated or tested and includes mandatory consultation requirements for employers who use this risk assessment tool.
The Act also requires that four weeks’ paid notice (subject to any longer notice period in the employment agreement) is given where an unvaccinated employee’s employment is terminated because their role requires vaccination. If the employee gets vaccinated during the course of the notice period, the notice of termination will be of no effect (unless cancelling the notice would unreasonably disrupt the employer’s business).
These novel issues arising out of the Government’s vaccination response can be difficult for employers to navigate, especially those with limited resources, and they remain largely untested. We expect to see a number of employment claims in relation vaccination policies in 2022.
Kiely Thompson Caisley: Laura Chapman