Employment Law Seminar - Presented by: Troy Wano Partner 2 December 2021 - Taranaki Chamber of Commerce

Employment Law Seminar

        Presented by:

         Troy Wano
          Partner

       2 December 2021

COVID-19 and Employment Law

Background

Mandatory Vaccination

Legal Background

•     New Zealand Bill of Rights Act
•     Human Rights Act
•     Privacy Act
•     Health and Safety at Work Act
•     Employment Relations Act

Case Law

Mandatory Vaccination

The Courts – Employment Relations Authority
GF v New Zealand Customs Service [2021] NZERA 382

Case brought by New Zealand Customs Service employee
for unjustified dismissal in the Employment Relations
Authority.

Authority found that the termination of the employment of the
employee, dismissed after refusing to be vaccinated, was
justified.

Mandatory Vaccination

The Courts – Employment Relations Authority
GF v New Zealand Customs Service [2021] NZERA 382

Employee was subject to the Order.

Authority accepted that Customs:
• followed a proper process;
• explored the reasons for the employee’s refusal to be
  vaccinated;
• allowed opportunities to respond;
• undertook risk assessment.

Mandatory Vaccination

The Courts – Employment Relations Authority
GF v New Zealand Customs Service [2021] NZERA 382

Authority viewed that Customs had every right to require its
staff to be vaccinated given also that it is a public agency
with a responsibility to be guided by government directives.

Mandatory Vaccination

The Courts – Employment Court
WXN v Auckland International Airport Ltd [2021] NZEmpC 205

Reversed an Authority decision to decline an unvaccinated
Auckland Airport worker interim reinstatement into their job.
The judge held that interim reinstatement was available to
the worker until the Authority makes a further ruling.
The worker was to remain on leave.

Mandatory Vaccination
The Courts – Employment Court
WXN v Auckland International Airport Ltd [2021] NZEmpC 205

Arguable that the Airport did not follow fair and reasonable
process.
• Inadequate consideration was given to the proposal the
  worker advanced.
• The Airport did not meet good faith obligations as they did
  not consider reasonable accommodation of the worker’s
  disability in work duties.

Mandatory Vaccination

The Courts – Employment Court
WXN v Auckland International Airport Ltd [2021] NZEmpC 205

“It is arguable that in circumstances such as the COVID-19
context, where a “no jab, no job” outcome is under
consideration, there is an active obligation on the employer
to constructively consider and consult on alternatives where
there is an objectively justifiable reason not to be
vaccinated.”

Mandatory Vaccination
The Courts – High Court
NZDSOS Inc v Minister For Covid-19 Response, Director-
General of Health and Attorney-General [2021] NZHC 3071

Four midwives, NZDSOS and NZTSOS application for interim
order against enforcement of the vaccine mandate declined.

“Preventing the Crown from enforcing the Order in its first
week of operation in relation to health and education would
cause significant disruption throughout NZ to the operation
of those vital sectors.”

Mandatory Vaccination
The Courts – High Court
Four Midwives v Minister for COVID-19 Response [2021]
NZHC 3064

Four midwives, NZDSOS        and   NZTSOS   application   for
judicial review dismissed.

It is legal for the government to make orders under the
COVID-19 Public Health Response Act that limit rights and
freedoms under the Bill of Rights Act if the limits are
reasonable and demonstrably justified.

Legislation

Mandatory Vaccination

Covid-19 Public Health Response (Vaccinations) Order 2021
Unlawful for “affected persons” to carry out work or
otherwise conduct activity at certain places unless they are
vaccinated:
•      MIQ and border facilities
•      Workers handling “affected items” removed from MIQ
       and border facilities, aircraft, ships

Mandatory Vaccination

Covid-19 Public Health Response (Vaccinations) Amendment
Order (No 3) 2021 extended vaccination mandate to:

•     Anyone carrying out high-risk work in the health and
      disability sector
•     Staff and support people in the education sector who
      are in contact with children and students
•     Prison staff

Mandatory Vaccination

COVID-19 Public Health Response (Vaccinations)
Amendment Order (No. 6) 2021 extended vaccination
mandate to workers at:
•      Food and drink businesses or services
•      Events
•      Close-proximity businesses
•      Gyms
•      Tertiary education providers in red traffic light
       setting
The mandate applies regardless of whether the workplace
decides not to require the public to show My Vaccine Pass.

Mandatory Vaccination

My Vaccine Pass is the official government vaccination
certificate/passport.

It is at the employer’s discretion whether they require My
Vaccine Pass to be used by people coming into the
workplace (not workers).

Hospitality, events, close-contact services, gyms and
entertainment venues will be limited in their operation if they
choose not to use My Vaccine Pass.

Traffic Light System

Traffic Light System Legislation

COVID-19 Response (Vaccinations) Legislation Act 2021

This legislation passed on 25 November adds powers to the
COVID-19 Public Health Response Act 2020 allowing the
government to enforce the traffic light system through
Orders.

The traffic light system will be enforced under the COVID-19
Public Health Response (Protection Framework) Order,
which comes into force at 11:59pm on 2 December.

Traffic Light System – Orange
• Public facilities open with capacity limits based on 1m
  distancing
• Retail open with capacity limits based on 1m distancing,
  face masks mandatory
• Workplaces open
• Education open with public health measures in place
• Food and drink businesses and services using MVP can
  open without limits. Those not using MVP can operate
  contactless only.
• Events using MVP can occur without limits. Those not
  using MVP cannot occur.
• Close-proximity businesses using MVP can open without
  limits. Those not using MVP cannot open.

Traffic Light System – Orange

• Gatherings using MVP can occur without limits. Those not
  using MVP can occur with up to 50 people, based on 1m
  distancing.
• Gyms using MVP can open without limits. Those not using
  MVP cannot open.

Definitions

Definitions
Definitions from the COVID-19 Public Health Response
(Protection Framework) Order 2021 (traffic light system).
Close-proximity business or service means:
•   A business or service to the extent that it carries on
    activities that it cannot undertake without
    •   Physical contact, or close-proximity, between people;
        or
    •   A worker being closer than 1 metre to the client.
•   Includes a certified playgroup; but excludes
    •   Professional and semi-professional sports; and
    •   Specified social services
•   Examples given in the Order are massage services and
    hairdressing services.

Definitions
Definitions from the COVID-19 Public Health Response
(Protection Framework) Order 2021 (traffic light system).
An event means:
• An activity organised by a business or service
• That is held at
   • Commercial premises or private premises (indoors or
     outdoors); or
   • Publicly owned premises hired for the purpose of the
     activity; or
   • An outdoor area where a group of customers and
     clients is accompanied or supervised by a worker
     providing services to that group (for example, a guided
     tour).
• For which entry is controlled (whether through ticketing,
  fees, registration, or any other means); and

Definitions
Definitions from the COVID-19 Public Health Response
(Protection Framework) Order 2021 (traffic light system).

Event meaning continued:
• Also means normal operations at cinemas, theatres,
  stadiums, concert venues, conference venues, casinos,
  and private galleries; but
• Excludes any activity at a private dwelling house

Definitions
Definitions from the COVID-19 Public Health Response
(Protection Framework) Order 2021 (traffic light system).
Food and drink business or service means:
• A business or service that sells, offers, or provides food or
  drink for consumption to customers and clients in a
  workplace, such as
   • A restaurant, café, bar, or club; and
   • A soup kitchen or other place where food or drink is
     provided without charge; and
• Includes a business or service that sells, offers, or
  provides food or drink
   • In a shopping mall; or
   • As part of an event

Definitions
Definitions from the COVID-19 Public Health Response
(Protection Framework) Order 2021 (traffic light system).
A Gathering means:
• Includes
   • Voluntary or not-for-profit sporting, recreational, social
     or cultural activities
   • Community club activities
   • Faith-based gatherings
   • Funerals or tangihanga
   • A gathering held in a defined space of a workplace, or
     premises that have been hired (excluding office
     workplaces)

Definitions
Definitions from the COVID-19 Public Health Response
(Protection Framework) Order 2021 (traffic light system).
Public facility means:
• Premises that are
   • Owned or managed by central or local government;
     and
   • Used for recreational, social, community, or cultural
     activities or services; and
   • Open to the public generally (including premises
     where fees are charged for entry); and
   • Indoor or a mix of indoor and outdoor; but
• Excludes those premises when used exclusively for an
  event or gathering
• Excludes recreation facilities that require membership

Definitions
Definitions from the COVID-19 Public Health Response
(Protection Framework) Order 2021 (traffic light system).

Workplace means:
• Premises where work is being carried out, or is
  customarily carried out, for a business or service; and
• Includes premises where a worker goes, or is likely to be,
  while at work

Risk Assessment Tool

Mandatory Vaccination

In workplaces where vaccination is not mandatory under the
Order, the employer cannot require their staff to be
vaccinated - but they can require that certain types of work
is only done by vaccinated staff.
In such circumstances, an employer must undertake a risk
assessment (see for example WorkSafe website or
government assessment tool).
Employers and employees encouraged to have good faith
conversations about this incoming requirement that will see
workers at these businesses need to be vaccinated.

Mandatory Vaccination

The COVID-19 Response (Vaccinations) Legislation Act 2021
came into force on 25 November allowing for employers to
conduct a risk assessment using the tool.
The assessment tool does not replace other risk
assessments conducted previously by an employer.
Employers have full discretion to conduct a risk assessment
using the tool.

Mandatory Vaccination

“This is about enabling employers, through a very simple
mechanism, to be able to make decisions about whether
work can reasonably be required to be done by vaccinated
workers only… it is important that employers have clear,
simple tools that they can use with a high degree of legal
certainty. There are existing health and safety assessment
tools that they can use, but the business sector itself has
told us and has requested that we provide simpler tools for
them to use.” (Hon. Michael Wood)

Mandatory Vaccination

The assessment tool is expected to involve an assessment
of four aspects of the workplace:

If three high risk factors are met, then this may mean
vaccination should be mandatory for that specific role.

Mandatory Vaccination
Assessing Risk

Current Worksafe guidance is that employers should
consider whether vaccination should be required for that role
if a risk assessment comes back high.

“If your risk ratings tend toward higher risk and you are not
able to reduce that risk by implementing more controls, you
and your employees should consider whether the work
should be performed by a vaccinated employee.”

Amendments to the Employment Relations
Act 2000 – Schedule 3A

Came into force on 26 November 2021

Employers
• Must give an employee reasonable paid time off during
  their normal working hours to receive a vaccination unless
  it would unreasonably disrupt business or the employee’s
  employment duties.
• Must give an employee reasonable written notice
  specifying the date by which they must be vaccinated in
  order to carry out their work.

Amendments to the Employment Relations
Act 2000 – Schedule 3A

Employers
• May terminate the employee’s employment if the
  employee is unvaccinated, and the employee’s role is
  required to be performed by a vaccinated person (whether
  the requirement for the role to be performed by a
  vaccinated person arises through a Government
  vaccination mandate, or through the employer’s own
  health and safety assessment).
• Must give the employee the greater of 4 weeks’ paid
  written notice of the termination or the paid notice period
  specified in the employment agreement.

Amendments to the Employment Relations
Act 2000 – Schedule 3A

Employees
• May retain their employment if they get vaccinated during
  the paid notice period, unless this would unreasonably
  disrupt the employer’s business.

MBIE Guidelines

Employers
• Should engage early and constructively with workers
  regarding vaccinations.
• Can ask employees if they have been vaccinated
  (although note that employees generally do not have to
  disclose this information, although there are exceptions).
• May assume an employee has not been vaccinated if the
  employee does not disclose their vaccination status –
  however, employers should first inform employee of this
  assumption before acting on it.

Protecting personal information
Employers
• Must take reasonable steps to protect employees’
  personal information about vaccination status and cannot
  share it without the employees’ consent.
• Must take reasonable steps to ensure information about
  vaccination status is collected lawfully, including:
   o Explaining to employees’ why this information is being
     collected, how it will be used, who will receive it,
     whether providing the information is compulsory or
     voluntary, and what will happen if the information is
     not provided.

Protecting personal information
Consulting With Staff

• Set deadline for vaccination
• Confirm intention to vaccinate, or not
• Confirm intention to seek exemption
• Consider alternative working arrangements
       (WXN v Auckland International Airport Ltd)

• Consider possible leave arrangements

DISCLAIMER

The material contained in this presentation is necessarily in
summary form. It is not intended to be a comprehensive statement
on the law as it applies to employment, neither is this presentation
meant to be legal advice.
Accordingly, you must not rely solely on this information without first
seeking detailed legal advice from the presenter.
You are not permitted to record this presentation in any way without
the express consent of the presenter.

Troy Wano
Phone: +64 6 768 3710
Email: troy.wano@gqlaw.nz