The below information is not intended to be used as legal advice. It is guidance based on information available as of 9 November, 2021. If you require legal advice, we recommend you engage with your usual legal advisor.
- The order is backed by good science and medical advice. There is strong support for it by professional bodies and unions to protect society’s most vulnerable and to allow the NZ economy to recover from the pandemic.
- It has been issued by the government to prevent and limit the risk of the outbreak and spread of Covid-19. The effect of the order is that all people performing certain work as listed are considered “affected persons” and must therefore be vaccinated. The most recent amendment to this list is those working in ‘high risk’ roles in the education and health & disability sectors.
- In respect to the health & disability sector, the updated order affects people:
- in frequent or face-to-face contact providing a health service
- working near healthcare workers, or who work where a health service is provided. This does not necessarily mean they have to provide a health service themselves but applies where they are in frequent contact with health service providers and work within a healthcare setting
- whether paid or unpaid, so in addition to employees it has broad scope to include clinicians, practice owners, volunteers, students, contractors etc who fit within the above criteria
- The first vaccine dose must have been received by Monday 15 November 2021, and second dose by Saturday 1 January 2022.
Effect of these orders
- Case law has already confirmed such orders are legal, binding on both parties, and not negotiable – there are almost no exemptions, medical or otherwise, and there is no regard for personal beliefs, circumstances, or dispensations. The law is absolute, so while the right to be unvaccinated remains, there may now be employment consequences.
- As with other constraints on employment – such as drivers required to hold a valid license or nurses required to hold a practicing certificate – affected persons who remain unvaccinated will not be allowed to do their jobs beyond the set dates (no jab, no job). However, the order does not in itself terminate the employment of these people. It will depend on what their employer considers being unvaccinated means for an affected person’s ongoing employment status, and that will depend on business needs.
- To justify a decision such as dismissal or indefinite leave without pay, the employer is required by employment legislation to follow a fair and reasonable process, in much the same way as dealing with disciplinary matters. Discussion and consideration of any feedback will therefore be required with any unvaccinated employees before implementing these orders. Any costs associated with the process or outcome will be for the employer to bear – including any reasonable cost of trying to accommodate unvaccinated staff elsewhere within the practice structure or on indefinite leave.
- Health service providers are required to confirm the vaccination status of their workers and any others directly involved with their practice under the orders (much like confirmation of a legal right to work in NZ or a police check for those working with children). If evidence is not provided, then the person will have to be presumed to be unvaccinated. The orders require that employers:
- Notify affected persons of their duty to be vaccinated
- Check the MoH register to confirm:
- each affected person’s legal name, date of birth and contact phone number, and
- whether affected persons are vaccinated
- Let affected persons know that they have been checked
- Allow affected persons to become vaccinated in usual work time if necessary
- Update the MoH register of any changes to an affected person’s status
- All new workers who start in the health & disability service and are defined as affected persons will need to provide evidence that they are already vaccinated or at least can comply with the effective dates per the vaccination orders prior to commencing employment.
- If there is a reasonable alternative job available within the health or disability practice that does not fall within the affected persons criteria above, this may provide a useful redeployment option for those who will not be vaccinated. However, given the broad scope of the order it is unlikely that many (if any) general practices would have such alternative positions available for employees and there is no obligation to create new roles without a compelling business case.
- Given the above points, it appears the most likely outcome for any current employee of a general practice who cannot be vaccinated or refuses for whatever personal reasons, is that their employment will need to be terminated on notice and without compensation. All new employees undertaking affected persons roles must be vaccinated.
- While consultation is not usually required for people who are not employees (e.g. contractors), it is advisable to follow a similar process as that used for employees to:
- demonstrate fairness, and
- protect against possible claims the person was in fact an employee as defined in law.
- It is an offence for affected persons and their employers to be in breach of the orders, punishable by imprisonment or fine.
- Even where all workers are vaccinated, other protective measures such as masks and PPE will continue to be used per any MoH guidelines.
- Immediately identify all people/roles that interact with the practice in some way, then determine who are the ‘affected persons’ that fall within the statutory order, and of those who are yet to receive their second dose or who will remain unvaccinated.
- As it is incumbent on the provider of health & disability services to ensure they are operating in a compliant manner, affected persons who are not employees still need to have their vaccination status confirmed. Practices could do this directly with the MoH, or contact the affected person’s organization or supervisor for confirmation.
- Remind those who have had only one dose that they must be fully vaccinated by 1 January 2022 and that they must advise if this is not possible.
- For employees, consult with anyone who remains unvaccinated to establish their intentions and to outline the possible outcomes of not being vaccinated within the required timeframes. Make clear that no decisions about their employment have yet been made and as always, keep notes of what is discussed and when, and follow up in writing (e.g. email) to confirm.
- Consider any feedback from unvaccinated employees and whether any alternative positions exist or could reasonably be created to accommodate those who indicate they will not be vaccinated. Note:
- While compassion and understanding may be helpful, there is no need to debate the merits of the order or human rights generally – any discussion need only be about the consequence on employment.
- These orders are likely to be in place for some time, so this is not a short-term temporary scenario. For all intents in respect to employment it can be considered an indefinite change.
- Respond to any feedback, provide a preliminary conclusion and the likely outcome of that conclusion, and seek any further feedback before deciding.
- Upon conclusion of the above process, if anyone cannot be, or refuses to be, vaccinated and there is no alternative position that would be reasonable for the practice, give notice that they will not be able to work or provide health services beyond 15 November 2021 due to their failure to meet statutory requirements. For employees of the practice this will most likely mean notice of termination, some of which may have to be paid in lieu of working past 15 November 2021 depending on the express notice period in their employment agreement.
- If there is some degree of ‘vaccine hesitancy’ it may be prudent – before proceeding to terminate employment – to offer a last chance opportunity so the employee can reconsider (this may be on leave after 15 November if necessary). Even if an employee has not received their first dose by 1 November, they could still have time to receive both doses by 1 January. This may mean termination is not confirmed until there is less than 3 weeks* left before 1 January and they have made clear their intention is to remain unvaccinated.
- While the process may appear similar, termination in these circumstances is not a redundancy as the position itself is still required within the practice structure. For employees who will not be vaccinated, the employment contract is effectively ‘frustrated’ by the imposition of new legislation and the employee being unable to meet statutory requirements. As noted above, this is more like a failure to maintain a practicing certificate, professional registration or hold a valid license.
- All the above steps should ideally be completed within the last two weeks of October 2021. Following confirmation of who is yet to be vaccinated and who has indicated an intention not to be vaccinated, allow up to one week to consult with them, receive feedback, convey your preliminary conclusion, consider any further comments, and make a final decision.
- Given this is new territory for most practices, any serious challenge by an unvaccinated affected person to a decision about their ongoing employment should be referred to a lawyer.
** assumes 3 weeks remains the minimum period between doses
I’d like to know more about this Order
The COVID-19 Response Minister’s press release announcing this order is available to view.
For further information about how this order might affect your practice or your workplace, talk to your lawyer.
For further information about the Order itself, contact the Ministry of Health or see their website.
Please visit COVID-19 for the latest updates.