For some employers, Covid-19 vaccine certificates (CVCs) are required in order to operate within the Covid-19 Protection Framework (the Traffic Light System). The scope of this requirement is slated to include hospitality, events, gyms, and close proximity businesses if they wish to operate under the Red Level of the Traffic Light System.

However, the question for many employers that are not in an industry covered by a CVC mandate, is whether they can / should mandate vaccinations in their workplace.

Following the recent passing of the Covid-19 Public Health Response Amendment Act (No.2) which gives broad powers to the Director General of Health to make Covid-19 orders, as well as further announcements from the Minister of Workplace Relations and Safety, and the introduction of the Covid-19 Response (Vaccinations) Legislation Bill, we now know what to expect over the next few weeks in so far as Government guidance on the Traffic Light System is concerned.

Government Announcement 23 November 2021

The Vaccination Assessment Tool

The Minister of Workplace Relations and Safety, the Honourable Michael Wood, announced this morning that a tool has been developed that “provides a clear, legal framework to help businesses make decisions about vaccinations in the workplace.”

“The tool will specify four key factors, at least three of which must be met, before it would be reasonable to require vaccination for particular work.”

The draft risk assessment tool includes four questions, covering the size of the space in which the worker works, the proximity of their contact with others, the duration of that contact, and the likelihood of coming into contact with those who are at higher risk of complications from Covid-19. Minister Wood has stated that the tool will be available from mid-December.

Importantly, Mr Wood made clear that the new process won’t override the risk assessments that business have already done under existing health and safety guidelines. The vaccination assessment tool will simply be an optional resource available for businesses not covered by the CVC mandate that wish to seek further guidance about whether CVCs should be required at their place of work.

For Businesses Covered under the CVC Mandate

For industries requiring CVCs, the Government has made clear that both customers and employees must provide proof of vaccination when the Traffic Light System kicks in. For workers this means they must have had their first vaccination by 3 December 2021, and be fully vaccinated by 17 January 2022, in order to continue doing that work.

The Covid-19 Response (Vaccinations) Legislation Bill

This enabling legislation has now been introduced and is expected to pass under urgency later this week. It provides for the ability to introduce the above assessment tools and processes under Regulations. Crucially, it will introduce a new Schedule 3A to the Employment Relations Act 2000, which provides for employees to be given paid time off work to have their vaccinations. It also provides for an employer to terminate employment with at least 4 weeks’ paid notice if the employee is required to be vaccinated under the legislation, or “the employer has determined the employee must be vaccinated” but the employee remains unvaccinated. If the employee is given the 4 weeks’ notice, but then becomes vaccinated, the notice is cancelled and of no effect. The Schedule will also require the employer to ensure that all other reasonable alternatives that would not lead to termination, have been exhausted, and it specifically does not prevent an employee from raising a personal grievance or other legal proceedings in respect of the dismissal.

Our Comment

The Government’s recent enabling legislation and announcements are geared towards the making of laws that will assist and encourage employers to manage health and safety in their workplace arising from Covid-19 with increased confidence. One way this will be done is through additional guidance on how employers can conduct their own Covid-19 risk assessment to determine whether work needs to be carried out by a vaccinated person. If that determination is made, legislation will put further process in place around a possible termination.

The draft risk assessment tool sets out certain criteria and businesses will need information. We suggest taking steps now to prepare, as there is a clear push from the Government to be proactive in assessing Covid-19 risk in order to be compliant with health and safety obligations.