COVID-19 Protection Framework – The Next Era in New Zealand’s Pandemic Response

On 26 November 2021, the COVID-19 Response (Vaccinations) Legislation Act 2021 (“Act”) came into force, which lays the groundwork for the Traffic Light Framework which is proposed to come into effect across New Zealand from Friday, 3 December 2021.  
 
Amendments to PHRA 2020
 
The COVID-19 Protection Framework
 
The Act broadens the type of COVID-19 Orders that can be made, to better reflect the new measures and intentions under the Traffic Light Framework.  For example, some of these changes include giving the Minister of COVID-19 Response (“the Minister”) the ability to make COVID-19 Orders that:

  • set out that only persons who comply with any specified measures imposed, can go to certain places/areas and any exclusions to this restriction (i.e. it is likely that individuals will still be able to access essential services regardless of vaccination status)
  • specify the requirements for vaccine certificates and necessary evidence needed to demonstrate compliance with a requirement/COVI9-19 Order
  • specify the work or classes of work that may not be carried out unless an affected worker is vaccinated, an exempt person or a person who is authorised by a COVID-19 Order to carry out work despite being unvaccinated (an “authorised person”)
  • impose further duties or obligations relating to specified work carried out by affected workers
  • impose different restrictions on persons depending on whether they have a COVID-19 vaccination certificate or on their vaccination status.

Health and Safety

Separate to this, the Act also places additional obligations on affected workers to comply with the requirements of the Act.  Affected workers now have a duty to:

  • refrain from carrying out specified work unless they are vaccinated, an exempt person, or an authorised person
  • update the information provided to the PCBU regarding their vaccination status as soon as practicable after it changes. 

In our view, these amendments are a welcome change which highlights the importance of a worker taking steps to comply with health and safety measures.  If a worker does not comply with these requirements, they will have committed an offence and may be subject to either a fine of up to $12,000 or imprisonment of up to six months. 
 
In addition, the Act now allows a PCBU to request that an affected worker produce information to the PCBU that verifies the worker’s vaccination status and allows the PCBU to take a copy or an image of a document produced.  If an affected worker fails to comply with the duty to produce evidence, the PCBU may treat the affected worker as being unvaccinated or not otherwise permitted to perform their work.
 
Risk Assessment Tool
 
The Act provides that the Governor-General may make regulations setting out a risk assessment tool that PCBUs may use to ascertain whether it is reasonable to require that certain work should only be carried out by workers who are vaccinated or required to undergo medical examination or testing for COVID-19 (or both). If an assessment is carried out with the tool, PCBUs must consult with affected workers and/or their representative regarding this assessment.  This creates a statutory obligation on PCBU’s to consult with affected workers regarding the assessment undertaken in accordance with this legislation.
 
However, whether a PCBU conducts an assessment in accordance with the risk assessment tools prescribed by regulations/legislation, is at the PCBU’s absolute discretion.  Accordingly, it is ultimately the PCBU’s decision as to what type of health and safety/risk assessment it carries out.  Any assessment must obviously be undertaken in accordance with obligations of good faith and be fair and reasonable in the circumstances.
 
Privacy issues regarding collection and disclosure
 
The Act also creates a comprehensive protection framework for personal information that is collected for the purposes of identifying whether an individual is vaccinated, has a vaccine certificate, or is compliant with the Act or an applicable COVID-19 Order.
 
Section 34B of the Act provides that, despite the rights and responsibilities under the Privacy Act 2020, information about an identifiable individual that is collected for the purposes of identifying whether they are vaccinated, whether they have a vaccine certificate, or that the individual has complied with the Act/relevant COVID-19 Order, must not be held, stored, used, or disclosed except:

  • to ascertain whether the individual is vaccinated or they have a vaccine certificate
  • to demonstrate or ascertain compliance with the Act/relevant COVID-19 Order
  • to enforce the Act/relevant COVID-19 Order
  • for the purposes of the Health Act 1956

However, individuals can still request access to and correction of information about themselves as provided for under the Privacy Act 2020.
 
Any intentional breach of this provision will constitute an offence (through which an individual could receive a fine or imprisonment).  Further, the Act clarifies that a breach of this provision will also amount to a breach of section 69 of the Privacy Act 2020, being an interference with the privacy of the individual. 
 
As this provision provides an exhaustive list as to the grounds for holding, storing, using or disclosing an individual’s vaccination status, it appears to prohibit use/disclosure of this information for any purposes not covered by these grounds.  As an example, it appears that disclosure of an individual’s vaccination status will not be permitted if it is not for one of the identified purposes, even if the relevant individual consents to the disclosure.
 
For employers who have implemented internal vaccination requirements, and who are not covered by vaccine mandates, publicly disclosing the vaccination status of staff, even with their consent, may constitute a breach of this provision, as none of the four grounds above would apply. 
 
We hope that there will be further guidance to clarify this issue.
 
Amendments to ERA 2000
 
The Act also makes several amendments to the ERA 2000 to support the implementation of the Traffic Light Framework, creating a new ‘Schedule 3A’. 
 
Entitlement to paid time off to receive COVID-19 vaccine
 
Schedule 3A creates an entitlement for employees to reasonable paid time off during their normal working hours to receive a dose of a COVID-19 vaccine.  The employee must give advance notice to their employer of the date and time they intend to receive the vaccine, and the amount of time they expect to take off to receive the vaccine, including any travel time.  Paid time off must be paid at the rate the employee would have received had they performed their ordinary duties during that time. 

An employer may only decline a request for time off to receive the vaccine if they believe, on reasonable grounds, that providing the time off would unreasonably disrupt:

  • the employer’s business, or
  • the performance of the employee’s duties

Minimum notice period for termination of employment in specified circumstances
 
Schedule 3A also creates obligations for employers where an employee is to be terminated in specified circumstances which relate to COVID-19. 
 
This provision applies where:

  • the employee has a duty imposed by the Public Health Response Act 2020 not to carry out work unless they are:
      • vaccinated against COVID-19
      • required to undergo medical examination or testing for COVID-19
      • otherwise permitted to perform the work under a COVID-19 Order
  • the employer has determined that the employee must be vaccinated to carry out the work of the employee.  In this event, the employer must have given the employee reasonable written notice specifying the date by which the employee must be vaccinated in order to carry out their role (“specified date”).

If the employee is unable to comply with one of the duties above, the employer:

  • may terminate the employee’s employment by giving the employee 4 weeks’ paid written notice, or the contractual notice within the employee’s individual employment agreement (“IEA”), whichever is longer
  • must pay the employee an amount equivalent to 4 weeks of the employee’s wages/salary (or any greater amount specified in the employee’s IEA), as well as any other service-related entitlements that are owing (e.g. holiday pay). 

Before giving notice of termination pursuant to this provision, the employer must ensure that all other reasonable alternatives other than termination of employment have been exhausted.
 
A termination notice given under this provision is cancelled and is of no effect if, before the end of the notice period, the employee becomes:

  • fully vaccinated against COVID-19, or
  • otherwise permitted to perform the work under a COVID-19 Order. 

However, a termination notice under this provision will not be cancelled, and will remain effective, if cancellation of notice would unreasonably disrupt the employer’s business.
 
This provision does not prevent an employee from bringing a personal grievance or legal proceedings in relation to their dismissal, nor does it prevent the employer and the employee from mutually agreeing to terminate the employment relationship and agreeing that the employee will be paid notice as set out above.   This being the case, it is important that procedurally fair employment law processes are followed.
 
For the avoidance of doubt, the Act clarifies that this provision only applies to an employee who receives a notice under this provision, and confirms that any payment for work done by the employee during the notice period is to be deducted from the amount specified above to be paid in relation to the notice period.
 
Whilst not explicit in the Act, it is our view that where this provision applies, an employer is prevented from unilaterally choosing to pay an employee in lieu of notice, even where the relevant employment agreement provides this discretion, as the termination of notice may be cancelled before the end of the notice period if the employee becomes fully vaccinated/is permitted to perform work under  COVID 19 Order Under this provision, an employee can only be paid in lieu of notice if this is mutually agreed.
 
COVID-19 Vaccine Certificates
 
On 28 November 2021, the Minister released an Order under the Act to clarify how COVID-19 Vaccine Certificates (“CVC”) will be issued (“CVC Order”), in preparation for the Traffic Light Framework being implemented.
 
Under this latest Order, CVC’s may be issued to fully vaccinated individuals and to “exempt” individuals.  “Exempt” individuals are those who have obtained a medical exemption under the CVC Order from the Director General which exempts them from receiving the COVID-19 vaccine.  The application for a medical exemption must be made to the Director General by a medical practitioner or nurse practitioner on the individual’s behalf.
 
Accordingly, those who obtain a medical exemption under the CVC Order will be eligible to apply for and receive a CVC, which will allow them access to any premises/businesses that require vaccine certificates under the Traffic Light Framework, despite being unable to receive the COVID-19 vaccine.
 
If you have any questions regarding the latest announcements, or about the impact of COVID-19 on the workplace, please feel free to contact us on 0800 339 002.

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