Mandatory COVID-19 vaccination and testing is perhaps the most challenging employment issue facing many organisations in recent times.
It affects not only organisations in sectors subject to vaccine and testing mandates, but also those grappling with whether vaccinations are necessary for health and safety purposes.
Which sectors are subject to mandatory vaccination and testing?
The sectors subject to mandatory vaccination and testing are continuing to expand in the lead up to New Zealand moving to the COVID-19 Protection Framework (the traffic light system) at 11.59pm on 2 December 2021.
As at 29 November 2021, COVID-19 vaccination is mandatory for workers who do certain work in the following sectors (however there are transition provisions that require workers to be treated as vaccinated until a specified date):
- health and disability
- affected education services
- the border (for example, work at airports, ports, or MIQ facilities)
- New Zealand Police and New Zealand Defence Force.
The COVID-19 Response (Vaccinations) Legislation Act will extend vaccine mandates to other sectors, such as hospitality and close contact businesses. As at 29 November 2021, we are awaiting the Orders which will set out exactly which workers in these sectors will be covered by the mandate.
What about other sectors?
The Government is producing a vaccination assessment tool that businesses can use to determine if it is reasonable to require their workers to be vaccinated for particular work and/or undergo medical examination or testing for COVID-19.
This tool will be set out in regulations that are expected to come into force mid-December. More information about the likely tool is at Business.govt.nz.
In the meantime, WorkSafe has guidance on how to decide what work requires a vaccinated employee. There is also useful guidance on MBIE's Employment.govt website.
What do organisations have to do?
Organisations that employ or engage people in the mandated sectors must only allow those workers to carry out certain specified work if they are vaccinated. There are some exceptions, for example if the worker has an exemption, and transition provisions that require certain people to be treated as vaccinated until a specified date.
Organisations must also:
- Notify their affected workers about their duty to be vaccinated (and if applicable, undergo COVID-19 testing and medical examination), and not prevent them being vaccinated (or tested if applicable) during work hours
- Allow employees paid time off for vaccination (unless it would unreasonably disrupt the employer’s business or performance of the employee’s duties)
- Keep COVID-19 vaccination records for affected workers
- Make sure that personal information about an identifiable individual that is given or obtained for contact tracing purposes or for determining if an individual is vaccinated is only collected, used, or disclosed for certain specified purposes.
What if a worker won’t get vaccinated or be tested?
The COVID-19 Response (Vaccinations) Legislation Act sets out a process for terminating the employment of workers that don’t comply with a government vaccination or testing mandate (or an employer determination that the employee must be vaccinated).
Employees must be given 4 weeks paid written notice (or any longer notice period specified in their employment agreement), and all other reasonable alternatives must be exhausted before notice is given.
How can ComplyWith Legal Compliance help?
We have already added legal compliance content about COVID-19 mandatory vaccination and testing, and protecting contact tracing information, to the Employment Category of the ComplyWith Obligations Register for organisations we know it’s relevant for.
If this content isn’t in your Obligations Register and you think it may be relevant, please get in touch.
We will also be adding new legal compliance content for the COVID-19 Response (Vaccinations) Legislation Act to the Employment Category of the ComplyWith Obligations Register.