Changes to Vaccine Mandates - What You Need to Know

(Information current as of 6^th April 2022)

The recent announcement by Government regarding changes to vaccine mandates, passes, and regulations has left some employers wanting more information.  Our SBS team has compiled the following Health & Safety and HR-related Questions & Answers in the interest of supporting good people decisions at another turning point in the pandemic.  This information has been summarised from the Government and other websites linked below. Government Vaccination Mandates continue to apply for:

• Health and Disability sector workers (which includes aged care workers)
• Prison staff
• Border and MIQ workers

Government Vaccination Mandates are no longer in force for:

• New Zealand Police workers (sworn members, recruits and authorised officers) unless working in an environment where a mandate is required
• New Zealand Defence Force workers (Armed Forces and civilian staff) unless working in an environment where a mandate is required
• Early Childhood and Schooling education workers
• Workers at food and drink services, events, close proximity services and indoor exercise facilities like gyms
• Work at Tertiary Education premises (which only applied at the Red level of the COVID-19 Protection Framework).

Employer Vaccination Requirements for Workplaces If a business or workplace isn’t covered by a Government vaccination mandate (above), an employer can themselves determine what controls can be supported by a health and safety risk assessment https://www.worksafe.govt.nz/managing-health-and-safety/novel-coronavirus-covid/covid-19-controls-at-work/#risk-assess  in their workplace or in relation to third party access requirements eg. a client requires contractors entering their site to be vaccinated. This may include requiring work to be done only by vaccinated workers. Employers must engage with workers and their representatives in good faith. This includes when they are developing, implementing or reviewing an employer vaccination requirement or other COVID-19 controls.

Q. What do the changes mean for me as an employer?

A. The Government’s approach to managing the pandemic has shifted, and the key message on vaccines has been updated to:

“Government vaccine mandates will now only apply to workplaces that support vulnerable populations, or who work in high-risk environments where spread would be rapid or exposure to new variants is high. These workplaces will need to continue to require their workers to be vaccinated and boosted.”

Depending on what policies you have enacted in the past two years, employers who wish to consider the role of vaccination in managing risk should complete (or re-visit) a work health and safety risk assessment. This should take into account updated public health information and advice from the Ministry of Health. The risk assessment will enable employers to determine what controls are appropriate in their workplaces.

Q.What should I do if I have created an employer-vaccination requirement, but it hasn’t come into force yet? 

A. It is recommended that you take a cautious approach and immediately pause any employment process that may be underway such as      consultation over implementing an employer-vaccination requirement/policy, including redeployment, leave or termination of the employment of unvaccinated workers. Review the workplace health and safety risk assessment to take in to account the current public health advice.

Q. I recently terminated one of my unvaccinated employees due to a Government mandate. Do I have to re-hire the employee back if our industry is no longer vaccine mandated as of 4^th April 2022? (for example teachers, hair stylists, gym employees, and other close contact businesses)?

A. Once an employment agreement has been terminated and the employee’s final day of work has taken place, there are no legal obligations on the employer to rehire that employee despite a change in circumstances or policies. The employer could choose to rehire the employee by offering them a new employment agreement.

Q. I enacted a company vaccine requirement through a health & safety risk assessment some months ago and determined it was appropriate for the business at the time. Can we keep this policy and still require employees to be vaccinated in order to work here?

A. We reiterate that due to Government advice changes, it is timely to review your risk assessment and determine appropriate controls for the workplace based on the updated guidance. The key question to answer during the risk assessment process is, “Is the employee exposed to a higher level of risk performing the job than they would be exposed to in the community?”

Q. What do I do if my company no longer has a vaccination requirement but a company we do work for still requires vaccinations?

A. There may be situations where a third party imposes a condition on an employer, eg. only allowing vaccinated workers onto its premises. This may arise where your company provides services to a third party, for example onsite security or catering services.

As long as these vaccination conditions are not unlawful, or in breach of any agreements between the parties, you will need to ensure your workers are vaccinated to keep doing business with the third party.  Where this situation applies, we recommend that you engage with the third party to ensure that in imposing this requirement they are meeting their work health and safety duties to so far as is reasonably practicable, consult, co-operate with, and co-ordinate activities.  This means that you may need to consider which of your workers engage with the third party based on their vaccination status.

Q. Some of my current employees have expressed concern regarding having to work alongside unvaccinated employees in the near future (or due to the changes). How do I manage these concerns? A. We would encourage employers to include in their response plan, strategies to manage the risks associated with unvaccinated workers returning to the workplace and be prepared to explain the plan and controls to staff.

Q. What should I do when hiring employees in the future? 

A. You should be clear when hiring new employees whether vaccination requirements apply (either under a government vaccination mandate or employer-led vaccination requirement) or whether requirements might apply in the future (particularly if you are still considering this). If, following a health and safety risk assessment, an employer considers a vaccination requirement is applicable for their workplace or for the role they are hiring into, this should be made known in the job advertisement and made clear to potential employees that vaccination is required to commence employment, subject to some conditions.

Q. Having conducted a health and safety risk assessment and determined a vaccination requirement is no longer required in my workplace, what should I then do? 

A. If you are removing workplace vaccination requirements, there should be a clear transition process:

• Ensure there is as limited window as possible for their removal (there is potential for legal challenge if they remain in place without reasonable justification)
• Be clear how you will deal with different views amongst workers (eg. those hesitant to work with unvaccinated colleagues) by listening to and addressing any concerns
• Implement any reasonable alternative controls to mitigate risk or transmission (eg. social distancing, mask wearing and good hygiene for all employees)
• Be clear how you will reintegrate unvaccinated workers into the workplace (particularly those currently stood-down and potentially those who had their employment terminated)

 Q. We collected vaccination information from our employees when we implemented a Vaccination Policy. How should these employee/contractor vaccination records be handled going forward?

A. Companies should continue to treat employee and contractor vaccination records confidentially and in accordance with the Privacy Act 2020. We suggest you review the usage and access to these records regularly, and securely archive the records if they are no longer being used for a legitimate business purpose.

(Q&A’s summarised from information within the Government’s Covid-19 Response, Employment NZ, Worksafe and Ministry of Health websites).   For more information on anything Health & Safety or HR-related, contact a member of the SBS Team.  Freephone 0508 424 723 or www.safebusiness.co.nz