Covid-19 Response (Vaccinations) Legislation Act 2021: vaccination and employment law

The Covid-19 vaccination legal framework created practical questions for employers and employees: notice, paid time to vaccinate, workplace policies, and how to manage disputes without turning them into unjustified dismissal claims.

COVID-19 Response (Vaccinations) Legislation Act 2021

The COVID-19 Response (Vaccinations) Legislation Bill. When going through Parliament, it has been criticised as being rushed through, that there has been no select committee stage due to the sudden urgency, there has been no public consultation, no regulatory impact statement, no analysis in consideration of the bill of rights, and the Human Rights Commissioner has expressed grave concerns about it. It has been criticised for lack of analysis and consultation. It's been passed now in a very short timeframe, a couple of days, and passed by way of the majority of the government.

Part of this new legislation includes the implementing of the mandatory paid four week notice period that will apply if dismissal occurs when an employee has chosen not to be vaccinated where their role requires it under the mandate. It also deals with employers needing to pay for time off for workers to get vaccinated.

We have only had a few days to digest this COVID-19 Response (Vaccinations) Legislation Bill which has been passed through under urgency. This makes amendments to the COVID-19 Public Health Response Act 2020 and to the Employment Relations Act 2000. These amendments have been enacted for the new COVID-19 Protection Framework and this new "traffic light system".

The legislation, via further Orders, will require the roles of those working in situations where use of a vaccine certificate is required, or can be used, to be filled by vaccinated workers. Where a vaccine certificate is required for customers covered by the My Vaccine Pass mandate, for example, workers in hospitality, events, gatherings, close contact businesses and gyms, these workers will need to have their first vaccination injection by 3 December 2021 and they are required to be fully vaccinated by 17 January 2022. An employee can apply for exemption status and subject to criteria they may or may not be granted an exemption which if granted would only have effect for no more than six months at a time.

Section 238A is being inserted into the Employment Relations Act 2000, Provisions relating to COVID-19 vaccinations, and this cross references Schedule 3A which I go on to describe.

Firstly, all employees will be entitled to reasonable paid time off to be vaccinated, including to receive the vaccination booster shots. But this is subject to whether providing the time off would unreasonably disrupt the employer's business or the performance of an employee's duties.

Where termination of employment is going to arise following that the employee cannot carry out work under the health order, the employee will be entitled to the greater of four weeks' paid notice of termination or if their notice period as prescribed by their employment agreement is greater than four weeks, that greater period of notice will apply.

This provision also provides where an employer has determined that the employee must be vaccinated, in which case the employer must give the employee reasonable written notice specifying the date by which the employee must be vaccinated in order to carry out work. It has been announced that there will be a Vaccination Assessment Tool released in mid December to help employers decide whether a worker would require vaccination. It will specify four key factors and at least three of them must be met before it would be reasonable to require vaccination for particular work. This will cover the size of the space in which the role is performed, the proximity to other people, the length of time in which the person performing the role is in proximity to others, and whether the work involves providing services to people who are particularly vulnerable to COVID-19. If an employer determines an employee occupying their position must be vaccinated, this reasonable notice procedure must apply in order to give the employee an opportunity to become vaccinated before the employer can then give written notice of termination.

If termination is going to proceed, the employer must also first ensure that all other reasonable alternatives that would not lead to termination be exhausted.

If within the notice period that is not less than four weeks, should the employee become vaccinated or otherwise permitted to perform work, then the termination is cancelled and of no effect. But again, another grey area arises by this legislation that goes on to say that the cancelling the notice of termination does not apply if the cancelling the notice would unreasonably disrupt the employer's business.

Personal grievance rights to bring a grievance for unjustifiable dismissal will be unaffected by these changes.

Law on dismissal for not being vaccinated

The normal tests for unjustifiable dismissal still apply and nothing has changed in this regard. Neither will the Covid-19 response change how the law is applied to unjustifiable dismissal claims.

An employer has the usual obligation to justify its actions having regard to section 103A, Test of Justification, and section 4, the Good Faith provisions of the Employment Relations Act 2000. This will also include the Authority or Court making an objective assessment on a principled basis the question of whether the employer by its actions conducted itself in a way that a fair and reasonable employer could have done in all the circumstances at the time the dismissal or actions occurred.