Vaccine passes and mandates to go: what does that mean for employers who have mandated for vaccinations?

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The government announced today that from 11:59pm Monday 4 April it will remove vaccine mandates for education, police and defence force workers, and businesses operating vaccine passes.
While the prime minister has said that government will work to advise the private sector on what to do, what does this mean right now for employers?

  1. For employers subject to government mandates which are being removed, dismissal processes should be stopped – the justification for the dismissal no longer exists (or will no longer exist as of 5 April). If this means a short time while your employees cannot work in your workplace, then consider alternatives such as paid or unpaid leave
  2. For those employers who have imposed their own mandates, the primary question will be whether the risk assessment you have used to justify the designation of positions as vaccination-only still provides that justification. The government is saying that for certain occupational groups formerly considered as higher risk, the risk no longer warrants a mandate. In that context, it seems unlikely that mandating vaccination-only roles in other industries will be a sustainable position. If the government no longer has a vaccine mandate in place for a teacher or a close contact worker, can it be justified in an office environment, or a supermarket? Most likely not. Watch out for more information from the government, and seek advice about your particular situation.
  3. If making dismissal decisions based on mandates, don’t forget the requirement to consider reasonable alternatives to dismissal. The newly inserted Schedule 3A of the Employment Relations Act 2000 requires that before giving a termination notice due to a mandate the employer must ensure that all other reasonable alternatives that would not lead to termination of employment have been exhausted.
  4. Although the change most likely doesn’t affect past dismissal decisions, as I have mentioned previously the primary remedy for a personal grievance is reinstatement to the former role. Where there is dismissal due to a mandate and the mandate has been properly applied and is current, that might not be possible. Now it most likely will be. We will probably see more successful reinstatement cases.
  5. For employers subject to a government mandate who are suffering staff shortages, now is the time to reach out to those dismissed employees to see if they are available to return.

Remember that health and safety duties and obligations will still apply in relation to the safe management of COVID-19. But any mandate policies should be reviewed now. And any policy currently in progress needs careful consideration before implementation.

If you have any questions regarding the vaccine mandates and the government’s announcement, contact the employment team here at Gaze Burt.

Shelley Eden
Shelley Eden
Partner

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