COVID-19 Update - Alert Levels & Vaccinations
Alert Levels
After a total of 49 days in lockdown in Auckland, the COVID-19 elimination strategy looks to be all but abandoned.
The latest approach to managing the Delta outbreak is changing, with a three step approach (within Auckland while in Alert Level 3) to loosening restrictions coming into force as of 11:59pm on Tuesday 5 October.
The steps will be reviewed weekly, and we have been advised that it could take between 4 – 8 weeks to move through these three steps.
These steps, as set out below, do not provide certainty for many businesses within Auckland, as there has been no mention as to when workers who are non-essential and non-retail can return to workplaces, and timeframes as to when restrictions will be eased remain unclear.
Step 1
As of 11:59pm on Tuesday 5 October, within Auckland:
People will be able to connect with others outdoors, provided that no more than 10 people from two households meet at a time.
Early childhood education will return for all.
People can move around Auckland for recreational activities such as beach visits and hunting.
Step 2
Retail businesses can open their doors, with the usual measures of wearing facemasks and keeping up physical distancing.
Public facilities such as pools and zoos will open, and the number of people who can meet outdoors will increase to 25.
Step 3
Hospitality will open – seated, separated and with a limit of 50 patrons.
Close contact businesses like hairdressers will also open with mask use and physical distancing.
Outdoor gatherings will extend to 50 people.
It has been confirmed that the wage subsidy will remain available for those business who are eligible for the duration of these steps, while the region remains at alert level 3.
With the exception of parts of Waikato which is at alert level 3, the above steps do not apply to areas outside of Auckland which are currently at alert level 2.
Vaccinations - Information for Employers
The availability of the COVID-19 vaccine has raised a number of questions about civic responsibilities and bodily autonomy. The Government has expressly stated it will not make vaccination mandatory, yet they have tasked Employers to assist in the vaccine rollout by encouraging their staff to be vaccinated.
Understandably, employers are wanting to protect staff and customers from the spread of the virus and put up their best line of defence against any further business interruptions, however there are limited circumstances in which an employer can require an employee to be vaccinated.
Currently, there is a Health Order which requires work which is undertaken at the border and/or within MIQ facilities to be undertaken by a vaccinated person.
Outside of the work already covered by a Health Order, it is up to employers to make a decision on how they will manage vaccination requirements within their own organisation.
However it’s a matter of deciding the ‘no jab, no job’ rule will apply.
The New Zealand Bill of Rights Act sets out an individual’s right to refuse to undergo medical treatment. This includes vaccines.
Furthermore, The Human Rights Act prohibits discrimination on specified grounds including religious belief, ethical belief, age, and disability.
This means while strong employer support for vaccination is lawful (and encouraged by the Government), an employer cannot require an employee to be vaccinated under the Bill of Rights. In addition to this, an employer cannot discriminate or disadvantage an employee on the grounds of vaccination status under the Human Rights Act.
Health and Safety Risk Assessment
We are yet to see any NZ case law to guide employers regarding non-border worker roles, however both MBIE and WorkSafe have confirmed it is possible for an employer to require certain work be undertaken by vaccinated workers only, provided that the employer first undertakes a rigorous health and safety risk assessment to support this requirement.
In order to meet the threshold to require work is undertaken by a vaccinated employee, a health and safety risk assessment would need to prove, that within the organisation:
the work undertaken, or the work environment in general, would place an employee at a higher risk of contracting or transmitting COVID-19; and
Safety and hygiene measures (PPE usage, hand washing, social distancing, staying home when unwell etc.) would not be sufficient to minimise the risk of COVID-19 being transmitted within the workplace.
It is unlikely that many workplaces, or types of work (which are not already covered by a health order) will meet the threshold required in order to mandate vaccinations within their workplace.
However, it is possible that an employer could require employees to undergo regular testing.
An employer does have an obligation under the Health and Safety at Work Act to take all steps reasonably practicable to eliminate or reduce any risk to an employee’s health and safety at work. However, provided that an employer can show that their workplace is working in accordance with public health guidelines, then it is likely that the requirements of Health and Safety at Work Act are being met.
Vaccination Status of Staff – Privacy Act
An individual’s vaccination status (as is all other health information) is considered to be personal information.
Only where there is a legitimate and justifiable need to know, an employer could ask an employee to disclose his/her vaccination status. However, an employer cannot require an employee to:
be vaccinated;
disclose their vaccination status; or
disclose their reasons for not vaccinating.
If an employee chooses not to disclose his/her vaccination status, the employer should assume that the employee is unvaccinated and advise the employee of this assumption.
Furthermore, employees cannot be dismissed, redeployed or disadvantaged on the grounds of vaccination status, unless particular work cannot be done by unvaccinated employees.
Any personal information about employees must be collected and maintained in accordance with the Privacy Act. This means employers need to:
be clear about why they are seeking the information
collect information directly from the employee concerned
advise staff how the information will be used and maintained
store the information in a secure manner
maintain employee privacy. Personal information must not be disclosed to anyone without the express permission of the employee.
Refusal to work
Employment Law applies regardless of alert level or vaccination status.
If an employee refuses to return to work on the grounds of vaccination status or refuses to work with another staff member who is unvaccinated, matters could be treated formally. Disciplinary action is a possible outcome in this instance.
Please contact us in this instance, we’re here to help.
New Employees
There has been some discussion around the ability for an employer to ask prospective employees about their vaccination status or make vaccination a term of employment for new employees.
MBIE has confirmed that while this may be possible, any requirement to be vaccinated would need to be reasonable for the role or the workplace (i.e. supported by a health and safety assessment as set out above). Caution should be taken in adopting this approach as there may be implications relating to discrimination under the Human Rights Act.
It is of considerable concern that the Government has not provided guidance for employers, falling back only on general equivocal statements.
In any case, employers should keep the fundamental employment obligations at the forefront of the mind when addressing COVID-19 issues. Employers should encourage staff to be informed about the vaccine and enable staff to get vaccinated should they choose to.
As with all employment matters, we expect this matter to evolve over time as it is tested in the Courts. We will of course keep you all updated on this front.
Kind regards
Emma Lucas
Associate
Knowhow Limited
Information contained herein does not constitute a definitive or complete statement of law. "What's New" is designed to provide accurate and authoritative information on employment matters. "What's New" is not rendering legal, accounting or other expert advice. Because employment related matters must be dealt with on a case by case basis the information provided herein is not intended to supplant professional legal and other expert advice being sought in regard to a specific problem.
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