Client Update: February 2021
No Jab – No Job?
One of Aotearoa’s largest retirement village providers recently stated that anyone hired to work at its facilities would need to consent to receiving the COVID-19 vaccination. It also stated that if an existing employee objects to receiving the jab, then it will look to manage the risk through personal protective equipment (PPE), particularly when borders open and the risk of a COVID-19 outbreak may increase.
So, can employers actually require job applicants, or existing employees, to show they have received the COVID-19 vaccination to be offered, or keep, their employment?
The starting point here is that there can be no blanket, or even a ‘one size fits most’, rule. Instead, a case-by-case approach will be required, and risk assessments will need to remain dynamic as the circumstances change.
Requiring confirmation of vaccination pre-employment, or requiring existing employees to be vaccinated, could be considered a breach of the Human Rights Act 1993. Relevant prohibited grounds of discrimination under that Act include religious belief, ethical belief or disability. There are some exceptions based on avoidance of risk. The New Zealand Bill of Rights Act 1990 also states that a person is entitled to refuse medical treatment, which will include being vaccinated.
Balanced against the rights and protections in those Acts, employers are also required under the Health and Safety at Work Act 2015 to take all reasonably practicable steps to ensure employees’ (and others’) health and safety. That Act requires an assessment of the type of work being performed, the worker’s own circumstances, and, as part of both, considering the available steps to avoid or mitigate risks (such as risk of contracting or spreading COVID-19).
The availability (or otherwise) of a vaccine would also clearly affect all of this.
The extent of any community transmission, and so of risk of infection, would also be relevant.
We suggest that if you are looking at how to approach the ongoing risks of COVID-19 for your business, you contact us for tailored advice about what measures you can put in place.
There are several kinds of financial support available for businesses and workers. Some of the new subsidies available include:
- Resurgence Support Payment: this helps businesses affected when there is a change from Alert Level 1 to higher Alert Levels for a week or more. The payment will help cover wages and fixed costs. There is a standard payment available for each eligible business, with an additional payment for each employee, up to a total of 50 full time equivalent employees. Eligibility criteria includes a 30% drop in revenue or capital raising ability over a 7-day period following the increased Alert Level. Other criteria also apply;
- Short-Term Absence Payment (STAP): this is a one-off payment of $350 for each eligible worker who needs to miss work while they (or a dependent or close contact) waits for a COVID-19 test result, in accordance with public health guidelines. An employer can apply once for each eligible employee in any 30-day period, or more frequently if the employee has been told by a health official or doctor to get another test;
- Leave Support scheme: this is a lump sum payment to cover 2 weeks’ wages for employees who are required to self-isolate and cannot work from home;
- : the Government has announced wage subsidies will be available again if we move to Alert Levels 3 and 4 anywhere in New Zealand for 7 days or more. The support would be provided in two weekly payments for the duration of the Alert Level period.
More information on these, including criteria, can be found at www.covid19.govt.nz. We are also happy to assist.
In other COVID-19 related news:
- COVID-19 vaccinations for border workers started last week.
- The first Employment Court judgment on COVID-19 lockdown wages was released just before Christmas 2020: Gate Gourmet New Zealand Ltd v Sandhu.
Employees were paid at 80% of their wages during lockdown, with the option of using annual holiday entitlements to top up to 100%. The minimum wage rate increased during lockdown, and an issue arose about whether that increase had to be applied to the payments made. The majority of the full Employment Court held the Minimum Wage Act 1983 applies only to hours actually worked. That means there is no statutory minimum wage entitlement for times when employees are not working. There may be other basis for payment (e.g. contractual) but this was not addressed in the case.
More Employment Court judgments addressing obligations and entitlements during lockdown are expected soon. Watch this space.
Other employment law changes
- A Bill has been introduced to increase minimum sick leave entitlements from 5 days per year to 10 days per year.
- The Government has announced a new public holiday – the first in almost 50 years. The new Matariki public holiday will be first observed next year, on 24 June 2022. The date will change each year, and will usually occur at the end of June and the beginning of July.
- Minimum wages rates will increase from 1 April 2021.
- The Government has also accepted all the recommendations made by the Holidays Act Taskforce, and new Holidays legislation is expected to be introduced in early 2022.
For any advice from our employment law specialists, either call us on 04 801 5427, or contact us via email:
Paul McBride (Partner) – firstname.lastname@example.org
Guido Ballara (Partner) – email@example.com
Frances Lear (Senior Associate) – firstname.lastname@example.org
Saadi Radcliffe (Solicitor) – email@example.com
Emma Rose Luxton (Solicitor) – firstname.lastname@example.org
Disclaimer – this newsletter is necessarily brief and general in nature. You should therefore seek professional legal advice before taking any action in relation to any matter addressed above. © McBride Davenport James