Employers have new considerations under lockdown for the virulent Delta variant of Covid 19, write Liz Coats, Tim Clarke and Rachael Brown of law firm Bell Gully

Covid-19 is back on our shores, but many things have changed for employers as they grapple with the implications of a return to alert Level 4. What worked in March 2020 is no longer fit for purpose in 2021 – recycled responses aren’t an option. Critically, the Delta variant of Covid-19 raises different health and safety considerations from its predecessor Alpha, while on the other side of the equation vaccinations have become increasingly available.

There are also different forms of government support available to employers, and we now have the benefit of hindsight. Sev​eral cases heard by the Employment Relations Authority and Employment Court addressed different employer responses to the last alert Level 4 period, and offer insights.

These are some of the changes we have considered when responding to employers since New Zealand returned to lockdown. Here we highlight some of the most frequently asked questions of the past fortnight.

Can employers require ​​their employees to be vaccinated?

This depends on whether employees are subject to the Covid-19 Public Health Response (Vaccinations) Order 2021 – or not.

Workers who carry out work that is subject to the order are described as ‘affected persons’. ​Employers of those people must ensure that affected persons obtain vaccinations by the dates specified in the ​order, unless an exception or exemption applies.

The type of work that is subject to the order is listed in a separate schedule, and relates to workers at managed quarantine or isolation facilities, at affected airports, at affected ports, air crew, and workers who handle certain items that pass through managed quarantine or isolation facilities, airports, or ports and have contact with workers at those places.

If affected persons don’t get vaccinations by the required dates, and no exception or exemption applies, then their employer must not allow them to perform the relevant work from those dates.

Employers in that situation will need to undertake a fair process, in good faith, with those affected persons to determine why they have not been vaccinated, and, if an employee refuses to be vaccinated, whether they can be given alternative duties or redeployed to any work that is not covered by the vaccinations order.

Ultimately, if the employee refuses to be vaccinated and can’t be given alternative duties or redeployed, then in our view it is likely to be fair and reasonable for the employer to terminate their employment. However, as with all terminations, the employer will need to conduct a fair process, consider the facts and circumstances before reaching that outcome, and comply with any relevant employment agreements or policies.

If current employees aren’t subject to the vaccinations order, it is much less certain whether employers can require their employees to be vaccinated for roles where work isn’t covered by the vaccinations order.

At a high level, we consider that it is only likely to be lawful and reasonable for employers to require employees to be vaccinated to perform certain work under the following circumstances:

– If those employees perform work that could be fairly described as being “high risk” of either catching Covid-19 or transmitting Covid-19 (particularly to vulnerable co-workers such as the immune compromised, or vulnerable customers like those at aged-care facilities) and existing control measures are inadequate to minimise the risk sufficiently.

– If the employer has conducted a thorough health and safety assessment with their workers and unions before introducing any such policy in relation to any positions, applying usual good faith consultation principles.

– If the employer has also fairly considered the timing of any such policy taking effect (given the status of New Zealand’s vaccine rollout) and any exceptions that may be applied (for example, where employees choose not to be vaccinated, whether for religious, health or other reasons).

Employers who are considering mandatory vaccination policies for specified roles should consult guidance from WorkSafe, and ensure they are complying with all information privacy principles, both in their consultation process and in the implementation of such a policy. Regular publications from the Privacy Commissioner on these issues should also be taken into account.

There are moves towards compulsory vaccination orders extending beyond just border-related workers overseas. In the UK, rest home or residential care workers will need to be vaccinated from November (with limited exemptions), and the UK government is considering whether to extend mandatory vaccination to NHS staff. In New South Wales, the state government has said all healthcare employees must have their first dose of a vaccine by September 30, and be fully vaccinated or at least have their second vaccination booked by November 30. Staff who cannot provide evidence to their employer of a first dose by the September deadline must be excluded from the workplace.

Overseas experience also suggests the conversation about compulsory vaccination here could shift towards a wider range of workplaces being justified in introducing a mandatory vaccination policy, if the risk associated with Covid-19 increases. That may occur, for example, if the current outbreak is not brought under control through the current alert level settings and there is wider community spread. Every employer’s workforce will raise different considerations, and it is prudent to take specific advice on these issues. We also recommend that employers monitor government guidance and orders in this space.

Bell Gully partner Liz Coats

Can employers require prospective employees to be vaccinated?

In principle, an employer can make a new employee’s employment conditional upon that person providing the employer with evidence of their vaccination status (and appropriate maintenance of this over time). However, in our view, whether such a condition is lawful will still depend on the level of risk associated with the work to be performed by the employee.

This is because such a condition will require the employer to collect personal information from the prospective new employee about their vaccination status. Under the Privacy Act 2020, such collection can only be undertaken if the collection is for a lawful purpose connected with a function or activity of the employer and the collection is necessary for that purpose.

An employer seeking to impose that condition must still establish that there are health and safety reasons which make it necessary for it to collect information about a potential employee’s vaccination status. To form such a view, the employer should conduct a health and safety assessment with their workers and unions as per WorkSafe’s guidance. Care will also need to be taken to ensure that the imposition of such a condition does not amount to unlawful discrimination.

If a person’s vaccination status doesn’t have much implication for their safety in performing their role (for example, because they work from home), then it is highly unlikely it would be appropriate to impose a vaccination condition on prospective employees – or to require it of current employees.

What can we learn from the cases arising from the last alert Lev​​el 4 period?

Each of the cases relating to issues arising in the last alert Level 4 period is very fact-specific to the particular response adopted by that employer. However, the cases give rise to at least three key principles. First, employment law principles continue to apply regardless of alert level – employment law is not suspended in lockdown. Secondly, if an employer wishes to restructure its business, it must still have a genuine commercial rationale and consult in good faith with employees before implementing any substantial changes or disestablishing any positions. Finally, an employer needs to be very careful before it reduces or withholds employee pay, even if the employee is unable to perform their work at alert Level 4.

The risks associated with reducing employee pay will be reduced if the employer obtains employee consent through a fair consultation process first, or the relevant employment agreement provides for a reduction in pay in this type of situation. Given the uncertainty of the legal position, there will be legal risk in reducing employee pay without an employee’s consent. The extent of that risk will depend on factors such as the terms of the relevant employment contract, and any consultation conducted by the employer before it introduces any reduction in pay.

What financial support is available for e​​​​mployers?

There are three different forms of government support available: the August 2021 wage subsidy; the short-term absence payment; and the leave support scheme. Further information about these schemes can be obtained from Work and Income.

We recommend that employers carefully review the declarations associated with each form of government support before submitting an application. The eligibility criteria are strict, and there are a number of requirements imposed on employers who receive money from the government under these schemes. Employers should retain evidence to support their applications for any government support, as any support given can subsequently be audited by IRD.

If an employer is eligible for financial support, is the employer required to apply​​ for it?

No. An employer is not required to apply for financial support from the government, and there may be many commercial reasons why an employer chooses not to. However, if an employee or union requests that an employer consider obtaining financial support, the employer should consider that request in good faith.

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