Business and Mandates – What Now?
The government has recently announced that at 11.59pm April 4 2022, vaccination mandates for early childhood and education workers as well as businesses where a My Vaccine Pass is used (such as food and drinks services, events and close proximity services) will end.
It is important to note that vaccination mandates ending do not make any dismissals that occurred while the mandates were in force unlawful.
Private Business – what does this mean?
The key things to know:
- Vaccination mandates ending for certain sectors do not directly impact what private employers do. However, indirectly, it is a signal from the Government that the environment and requirement for mandates has changed.
- Most private sector businesses who have vaccination mandates in place, did so on the basis of having completed health and safety risk assessments for roles within the business.
- Businesses that completed health and safety risk assessments should now revisit those assessments to see whether they (and therefore, any requirement to be vaccinated) are still applicable.
Health and Safety Risk Assessments - has the environment changed?
Over the past 3-4 months several things have happened:
- Community transmission of Omicron is now widespread.
- Many people within the community (including unvaccinated people) have now had Omicron. Those people will now have some natural immunity to Omicron and this means there is a reduced risk of infection.
- New Zealand is a highly vaccinated population.
What this means
Given the environment changes noted above, plus the fact that the Government has signalled that vaccination mandates for almost all sectors are now not needed, it is highly likely that most roles in private businesses will not be required to be carried out only by vaccinated workers.
Reviewing health and safety risk assessments for all roles is likely to confirm this, although there may still be some roles that do still carry a higher risk of catching and transmitting COVID-19 and therefore a vaccination mandate may still be justified.
For most roles though, other public health measures (such as testing / social distancing / mask use / staying at home when sick) may be enough to enable the employer to meet its obligations to its staff under the Health and Safety at Work Act 2015, without the need for mandates.
What should private employers do?
1. Communicate, communicate, communicate
If you have vaccine mandates in place based on health and safety risk assessments, let your team know that you are reviewing the company’s health and safety obligations including the health and safety risk assessments. Disinformation, confusion and uncertainty have taken a toll on most people over the past two years, so the clearer you can be with your team around what reviews are under way, the better.
2. Health and Safety Risk Assessment – review
This is the key legal process you need to undertake in order to justify what action you take (either removing the mandates or looking to retain them).
3. Consultation process
There is likely to be a wide range of responses to any proposed changes around mandates. While some people may thoroughly support dropping mandates from a private work place, other team members may be highly anxious at that proposal.
It is really important that your process around making any changes to your vaccination mandates are undertaken lawfully and in line with employment laws.
For further advice, get in touch with our Commercial Law Team.
