Compliance Q&A: Changes to Vaccine Mandates – What does this mean for businesses?

On Wednesday, March 23 the Prime Minister announced changes to New Zealand’s Covid-19 restrictions, which will put the onus back on businesses to decide how they navigate their Covid-19 response.

While this has been reported as the end of vaccine mandates, this is not accurate. 

Government vaccination mandates will still apply to the following sectors:

  • Border workers
  • Corrections staff
  • Health, disability, and aged care workers.

Shima Grice, Partner (pictured), and Grant Davidson, HR Coordinator, from Sharp Tudhope explain.

What does this mean for businesses?

Businesses will now need to decide whether to maintain vaccination requirements, vaccine passes and QR code scanning facilities.

MBIE has also released updated guidance for businesses considering vaccination policies. This includes carrying out an updated health and safety risk assessment whilst also considering existing public health advice provided by the Ministry of Health. Public health advice suggests that vaccination in the workplace should only be required if an employee is at a higher risk of Covid-19 transmission while at work, than they would be in the community.

Workplace Relations and Safety Minister Michael Wood has commented that employers may still be able to maintain vaccination requirements where they continue to be supported by a workplace health and safety risk assessment, but the reason will need to be specific to their role and set of circumstances. Guidance from WorkSafe reiterates that the focus of a risk assessment is the work being done, not the person doing it. 

When reviewing their health and safety policies, employers must act in good faith and engage with employees and their representatives.

Businesses should also consider any potential instances where a third party could impose vaccination requirements on staff, for example, if employees go onsite to provide services to other businesses that continue to have a vaccination policy, or at workplaces still covered by government mandates.

If any employee was terminated due to a vaccination mandate, can they now have their job back?

This question is one of the key questions to emerge from the pending rule changes on April 4th. Are we going to see those terminated employees regain their former positions?

The short answer is no.  If an employee was dismissed due to government/employer vaccine mandates, their ex-employer does not have to offer the employee their former role back. 

If any employee was placed on a period of leave due to a vaccination mandate, can they return to work?

For roles covered by ongoing government mandates, unvaccinated employees will not be able to return to work.

For other businesses, this will be determined by the result of their health and safety risk assessment and vaccination policy.  If, having conducted a risk assessment and consulted with staff, the business decides to continue with their vaccination requirements, the employee will remain unable to return to work.

Can employers make vaccinations a requirement when hiring new staff?

Yes, an employer can make a vaccination a requirement of employment when hiring new staff. They can also ask a potential new employee their vaccination status if it is a condition of employment.

However, the employer must be prepared to share the basis for this requirement, including any risk assessment justifying the need for vaccination.

While these changes relax restrictions to an extent, one dark cloud that hangs over the returning sense of normality is the fact that we could still return to tighter restrictions if another variant arises, so it will be interesting to see how the next few months unfold as we come out the other side of the Omicron peak and welcome migrants and visitors back into our country.

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