15 November 2021

Employment Lawyer: Roles, not Individuals can be Mandated

A Southland employment lawyer is encouraging businesses to do their own risk assessments before Government introduces a new process under public health legislation later this year.

The Government announced last month that it would make legislative changes to give businesses who did not fall under current vaccination orders a simplified legal framework to guide Covid-19 vaccination policies.

Copeland Ashcroft Law managing partner Janet Copeland said it was becoming increasingly unlikely that businesses could have no stance on vaccinations at all.

“We won’t have this alert level safety shortly,” she said, referring to the Covid-19 Protection Framework, which had become known as the traffic light system, that would see the end of lockdowns.

Copeland gave employers a Covid-19 update at a talk arranged by the Southland Chamber of Commerce on Monday.

Vaccination mandates would present something of a juggling act for employers, she said, as all workplace law obligations would still apply, regardless of the new legislation.

Employers had to balance human rights, privacy rights, health and safety, and employment law with good faith – which required consultation with staff.

WorkSafe has made a risk assessment tool available on its website; and the Government has already indicated that it intends to mandate vaccinations for businesses where customers will be required to show their vaccine certificates

Copeland said using this tool, or doing an assessment of their own, would help businesses understand which roles posed a greater risk, and whether there were any options apart from vaccinations that could mitigate these risks.

An important legal consideration was the fact that businesses could not require individuals to be vaccinated, but rather, that certain work and roles only be carried out by vaccinated workers, she said.

“It sounds subtle, but it’s a critical distinction.”

The impending legislation means that in situations where vaccination is the only reasonable way to mitigate the risks of Covid-19 – and an employee chooses not to comply – a minimum of four weeks’ paid notice is required.

This posed a tricky situation for employers who would have to decide whether they should start the recruitment process when there was every chance the employee could be vaccinated and go back to work within those four weeks, Copeland said.

She recommended businesses formulate a vaccination policy, informed by risk assessments, along with a Covid-19 temporary operation policy – which included Government health and safety advice – and a work from home policy, so clear expectations were set.

Some of Southland’s larger employers are waiting on more government guidance on matter.

A spokesperson for New Zealand Aluminium Smelter said the company had not mandated vaccinations but was “strongly encouraging all our employees and contractors working at site to be vaccinated”.

Silver Fern Farms ran a raffle to incentivise workers to get jabbed, while Alliance Group and Fonterra offered on-site vaccination to make things easier for shift workers.

Southland District Council acting chief executive Matt Russell said the council was encouraging staff to be vaccinated, but added: “We will continue to assess all options we have to keep staff and our customers as safe as possible.”

Environment Southland spokesperson Amy Kubrycht said the council was making sure its health and safety plans reflected the risk that Delta posed, but vaccinations, while strongly encouraged, were not compulsory.

“The delta situation is an evolving one, as is the Government response and ours. We are keeping a close eye on it and will continue to follow government advice, adapting our response and engaging with staff as required,” Kubrycht said.

Gore District Council has established a small working party of managers who are maintaining a watching brief.

Chief executive Stephen Parry said: “Any workplace policy is unlikely to be developed before further government announcements are made at the end of November in regard to national policy settings for Covid-19 management.”

Invercargill City Council has had to work through mandatory vaccination requirements for staff who may interact with school children, but is awaiting further government advice on possible vaccination requirements for our wider services and facilities.

Published by Stuff.co.nz – 15 November 2021