Employers encouraged to be proactive on vax issues



One Queenstown law firm’s encouraging employers to be prepared for issues to arise over
mixed workforce vaccination status.

Anderson Lloyd employment law partner AJ Lodge says in the case of mandatory  vaccinations, there are three broad categories businesses will fall under.

The first is where workers must be vaccinated under the Covid-19 Public Health Response (Vaccinations) Order 2021 — that includes MIQ staff, border workers and other frontline staff.







At this stage, if a member of that category refuses to be vaccinated, their employment can be terminated.

Customs falls into the first category, but a Customs spokeswoman tells Mountain Scene all
its staff in Queenstown — where only quarantine-free flights can land — are fully  vaccinated and no terminations were made.

Lodge says several cases where unvaccinated employees were dismissed have been brought to the Employment Relations Authority and are now being appealed to the Employment Court.

But she says as long as steps including consultation and consideration of redeployment are
taken, termination of these roles is likely covered by the public health order.

‘‘This is what we’re currently advising, but that might change.

‘‘The position remains unclear still because we’re waiting on that Employment Court decision,’’ Lodge says.

When employers are hiring, they can ask prospective employees if they’ve been vaccinated, but the candidate can choose not to answer.

‘‘Unless the role that you’re applying for is one which requires a vaccinated worker, so is
in category one or two, then the employer can’t discriminate on the basis of the answer, or the lack of answer.’’

The second category of businesses aren’t covered by the public health order, but may require employees to be vaccinated on health and safety grounds, for example, aged and
residential care facilities.

‘‘Where you’re working with vulnerable people who may not be able to be vaccinated them
selves or may well be vaccinated, but even if they are vaccinated, if they get Covid the risks of them getting Covid and the potential impacts on their health are really serious,’’
Lodge says.

If the employer feels a particular role requires a vaccinated person, a health and safety risk assessment — found on the Worksafe website — must be carried out, alongside consultation with employees and unions.

Lodge says the health and safety risk assessment ‘‘isn’t a straightforward process’’ and urges caution when considering termination on these grounds as several steps have to be followed before that can happen.

‘‘I think if they [businesses] are looking at classifying some of their roles as roles that are
required to be performed by a vaccinated person, then it pays to get some advice,’’ she says.

The third category is ‘everyone else’ — that includes Queenstown Airport staff.

For businesses within that category, vaccinations are not required, but can be encouraged.

Lodge says, anecdotally, her firm’s hearing employers are introducing incentive schemes
for staff to get vaccinated.

But she warns they should consider eligibilities for schemes like that first.

‘‘If you’ve got an employee who can’t get vaccinated because of a medical condition, or
because of a religious belief, and then they missed out on the incentive, then that could potentially be challenged on the basis of discrimination or disadvantage,’’ Lodge says.

Anderson Lloyd’s starting to see issues arise in some of the category one and two employers, and warns with rising vaccination rates it won’t be long before Queenstown businesses need to deal with a mixed vaccination status workforce, and they should prepare for that now.