Businesses are eager to see how the Government’s new risk assessment law for mandating staff to get vaccinated will work and protect them from litigation.

Following last week’s announcement of businesses requiring vaccine certificates to offer services to vaccinated staff in the new post-lockdown traffic light system, the Government confirmed that workers in close-contact businesses will also need to be vaccinated.

As well, Workplace Relations and Safety Minister Michael Wood says a new law in the works will introduce a “clearer and simplified” risk assessment process for employers to follow when deciding whether they can require vaccination for different types of work.

“A number of businesses have already gone through a risk assessment process to mandate vaccinations at their workplace, but we’ve had calls from both businesses and unions to make this process as clear as possible,” Wood says.

“This risk assessment will build on the guidance provided by WorkSafe, with input from public health officials, business representatives and unions. It will cover factors like whether a workplace involves interaction with customers.”

Wood says workers who refused to get vaccinated would be given a minimum period of four weeks to get jabbed or lose their job.

Close-contact businesses that do not display vaccination certificates for patrons and therefore refuse to mandate vaccinations for staff would face trading restrictions during the red, orange and green phases.

But Duncan Cotterill health and safety lawyer Olivia Lund said because the vaccine certificate and therefore mandates, are not compulsory, it remained to be seen how the Government’s new risk assessment would protect workers who refused to get vaccinated, specifically in terms of redeployment ahead of termination.

“Businesses could still operate without vaccine certificates, and can avoid terminating people’s employment. That will be an area where that’s probably going to be tested in the courts to determine the employer’s obligation in considering alternatives to termination,” Lund says.

“Generally there is a very high obligation before you end someone’s employment that the employer considers all other options. Can I go to another role? Can they be redeployed? Can their hours be changed? I’d hope that there’d be some sort of provisions that deal with it.”

Lund says the vaccine mandate for employees should have been clarified and announced when the traffic light framework was revealed last week.

The minister also announced there would be $4.4 million invested in helping WorkSafe extend its work in engagement with business and enforcement of the new rules.

“I can’t imagine that’d be able to up-skill and increase .. assessment numbers to then be able to enforce in the way that would be required. I suspect it will be more around engagement than enforcement,” Lund says.

“We need to remember that our industry is still suffering a skills shortage and so rolling this out is going to have to be carefully managed to reduce the risk of losing a percentage of our workforce.”
– Marisa Bidois, Restaurant Association

She says the vaccination mandate will be welcomed by employers who have been asking for the Government to remove ambiguity around what they were able to ask of their workers.

Restaurant Association chief executive Marisa Bidois says while mandating a policy is a welcome step towards helping to keep businesses safe and operational, there is still an ongoing concern around losing valued employees to the mandate.

“We need to remember that our industry is still suffering a skills shortage and so rolling this out is going to have to be carefully managed to reduce the risk of losing a percentage of our workforce,” she says.

In a September survey of its members, 40 percent of respondents indicated they would be willing to put a vaccination policy in their workplaces while 25 percent were unsure. 

“In our discussions with members, feedback has shown some concerns around enforcing a policy that could make employers liable for discrimination on the basis of vaccination status.”

Meanwhile Retail NZ chief executive Greg Harford says the association is after more protection from the Government for employers over potential legal action.

“More detail is required, and Retail NZ is keen to work with Government to ensure that is real clarity around the risk assessment framework to be used.”

Leave a comment