Covid-19 Vaccination Order–Good faith communication critical for health and disability sector

This week Cabinet is expected to sign off the extension of the COVID-19 Public Health Response (Vaccinations) Order 2021 (the Order) to require those who perform certain work in the health and disability sectors to be vaccinated.[1]

While the possibility of mandated vaccination had been foreshadowed over previous months, the announcement on 11 October caught some providers by surprise, including the speed with which it has been introduced. Mandatory vaccination is a significant expectation on both workers and those managing workplaces. It is critical that employers engage with workers urgently, in good faith.

The Order

The purpose of the Order is to prevent and limit the risk of Covid-19.

The Ministry of Health has advised the following health and disability sector workers will be covered by the Order:

• regulated professions currently registered under the HPCA regulations
• non-regulated healthcare work home and community support services, non-Government organisations who provide health services
• roles undertaken by people who: 
• are in frequent contact, face-to-face contact, or are in close proximity to healthcare workers providing a health service
• work where a health service is being provided
• do not necessarily provide a health service, but their role requires frequent contact/engagement with those providing health services and is considered tied to a role within a healthcare setting.

The Order is expected to be gazetted Friday 28 October, and to take effect Monday 25 October 2021, at 11.59pm.[2]

When do workers have to be vaccinated by?

Under the announcement, all workers who are required by the Order to get vaccinated, were required to receive their first dose of the vaccine by 30 October 2021 (the first vaccination date) and be fully vaccinated by 1 December 2021.[3]

Workers are entitled to not be vaccinated, but under the Order, if they choose not to be, they cannot legally carry out work covered by the Order.

Employer obligations for those covered by the Order – Ask about vaccination status

Employers need to urgently request information about the vaccine status of their workers. If an employee declines to answer, an employer may assume that the employee is unvaccinated, in which case, the employer is entitled to ask whether the individual intends to be vaccinated. This enables an employer to understand whether or not the individual may be able to work legally after the first vaccination date =is required.

Employer obligations for those covered by the Order – Provide information and consult

Employees need to know whether they are covered by the Order, and if so, the potential consequences. This includes the fact that if they have not received their first vaccination by the first vaccination date (and provided proof of it), they will not be legally able to work, and their continued employment may be at risk. 

Employers should advise employees:

• that they will consider alternatives that may be available, as opposed to the potential end of employment;
• whether employees will receive pay in the event they cannot work after the first vaccination date, and/or paid notice;
• what information and support is available for the employee to make an informed choice about vaccination. 

Employers should genuinely consider employee feedback about these matters and engage with employees about these issues.

There may be limited opportunities for both employee exemptions and employer exceptions under the Order, but indications are that the threshold for these are high.

Good faith communication

Good faith obligations set out in the Employment Relations Act requires that information be provided and that employers consult with their employees on proposals that may impact on employment. 

Communication with employees is expected to be proactive and responsive, therefore waiting until the Order comes into effect is likely to be too late, and create additional and unreasonable stress on both employers (trying to manage their workforce and service requirements) and employees wanting to ensure that they are making informed decisions about vaccination and the potential consequences for their employment.

Changes within the current environment, including increasing Covid-19 community transmission, and the introduction of the Order and its implications can be stressful. Employers should encourage the use of Employee Assistance Programmes.

Advice

Mandatory vaccination orders create unique issues. We recommend that it is imperative that employers seek specialist employment advice, at the earliest opportunity to help navigate these issues. This minimises the risk of a legal claim, and provides greater confidence in the ability to continue to provide important healthcare services.

The specialist employment law team at DTI Lawyers is well experienced in relation to managing obligations and rights that relate to Covid-19. They can be contacted on

[We note that this article was first published prior to the Order being made public and being gazetted. The Order was amended with a change in date by which vaccination of those in the health sector is required, from 30 October and 1 December 2021, to 15 November 2021 and 1 January 2022.]