Holland Beckett Law partner Christie McGregor. Photo / Supplied
Restrictions are being eased and vaccine passes will no longer be required from April 4. So can people who lost their jobs over the mandates get their jobs back? Reporter Zoe Hunter asks Bay of Plenty employment lawyer Christie McGregor what the new rules mean for the workforce.
What impact will lifting the mandates have on Bay employers?
For employers impacted by government vaccine mandates in the education, police, and New Zealand Defence Force fields, they will be able to employ unvaccinated employees, and allow those unvaccinated employees who are on leave to return to work.
We will await further guidance around the impact for employees whose employment has been terminated based on the Government mandate. We anticipate that the Government will not wish to make those terminations open to challenge, or impose a reinstatement obligation.
For other employers with their own self-imposed vaccination mandates, there will be to consider whether they wish to continue. However, the validity of such employer mandates, particularly when made reliant on the Government's own risk assessment, should not be retrospectively open for challenge.
What happens to the people who lost their jobs while mandates were in place? Can they automatically get their jobs back?
The Government advised in their media release that affected employees who were put on leave because they are unvaccinated (but still employees) can be reinstated. However, the Government is yet to confirm what the position will be for employees whose employment was terminated as a result of Government-imposed vaccine mandates. It is unlikely the Government would wish to impose such a requirement on private employers.
What are the rights of employees who do not want to work next to unvaccinated fellow employers now that mandates are lifted and they may potentially be able to come back to work?
Employees who are concerned should raise those concerns with their employer as a potential health and safety risk. The employer would need to consider those concerns, whether they accepted a risk existed and any steps that could be taken to address the risk created. The employer could determine to take steps to address the risk (e.g. spacing, use of PPE or working in bubbles).
Can the employer demand or require unvaccinated workers to return to work?
If the employer has required unvaccinated employees to remain away from work based on a mandate, where the mandate is removed they can reasonably require affected employees to return to work.
Are you expecting a rise in Employment Relations Authority cases?
We anticipate that there will likely be more unvaccinated employees challenging employer mandates or dismissals as a result of vaccination status. This is particularly true for such dismissals going forward. However, the Government changes don't have retrospective effect, so shouldn't be intended to overturn previously valid terminations.
The size of the impact is yet to be seen. Hopefully, further government guidance will provide better certainty.
What should unvaccinated workers in professions where vaccine mandates no longer apply (whether they lost their job or had substantial changes to their job) do next?
The cornerstone of employer-employee relationships is the concept of "good faith". Both employer and employee should engage in discussions around what this means for their employment going forward. If the employment relationship is still on foot, a return to work would need to be discussed. For employees whose employment has been terminated, at this stage, we don't consider there is any obligation to reinstate (although it could be considered).
Where businesses have mandated Covid-19 vaccination status into their health and safety or other policies, what changes?
On the current advice of the Government, nothing changes, assuming the business undertook a valid health and safety risk assessment when the mandate was determined. However, we anticipate that employers will be under pressure to review their existing risk assessments and the need for their own mandate going forward. This will be an individual business decision. In our view, ongoing review is important in any case as the situation in relation to Covid-19, and the various variants, is evolving rapidly.
Were the mandates a general waste of time (in your view)? Why?
I don't believe so. The Government used the mandates as its first line of defence based on health advice that vaccination provides the most effective means of protection from contracting and transmitting Covid-19.
Government mandates in relation to health and disability, aged care, corrections and border workforces will remain, but in a "narrower" capacity. We will await further advice on what that means, however, this indicates that there is still seen to be validity in mandatory vaccination, particularly in high-risk environments.
Who are the biggest winners and losers out of all of this?
In our experience, employers have done their best to understand and comply with their obligations around Covid-19. This has involved having to make tough decisions around health and safety and vaccination. It has been a rapidly evolving playing field, and has been tough for all concerned to navigate.