As we head towards the holiday season, the Government has rushed legislation through Parliament to meet its public pledges for a new traffic light system, with a view to unlocking summer freedom - at least for the vaccinated.
The COVID-19 Response (Vaccinations) Legislation Act 2021 was passed into law last week and is in force now. However, it does not give any of the detail around the key parts of the ‘Traffic Light System’ for which employers have been waiting. Its main sections simply give the Government the power to issue a range of further Public Health Orders to put in place the COVID-19 Protection Framework. Those future Public Health Orders will confirm:-
- Which types of work must be performed by vaccinated workers (envisaged to cover hospitality and close contact businesses);
- Which businesses or services will be regarded as essential and not permitted to bar the unvaccinated (e.g. supermarkets, pharmacies and other health services);
- When and how vaccination certificates must be used;
- A new simplified risk assessment to determine whether employees need to be vaccinated.
In the meantime, much remains uncertain.
Vaccination leave and termination rules
The new Act also amends the Employment Relations Act 2000, inserting a requirement to provide employees with paid time off to get vaccinated, and rules to allow the dismissal of staff who refuse to get vaccinated. The termination provisions are unprecedented, offering employers a specific statutory right to terminate staff.
We will soon see how this new power to terminate tangles with the normal statutory and good faith requirements for a fair dismissal, as the right for employees to raise a personal grievance is expressly preserved. It appears likely that employers will still need to prove that the termination is fair (both substantively and procedurally), with the Courts and Employment Relations Authority traditionally taking a restrictive approach to legislative attempts to curtail employee rights to claim unjustified dismissal. There will inevitably be scrutiny of the quality of the risk assessment carried out by the employer, whether using the new tool when it is available, or the existing WorkSafe guidelines. Simply carrying out a risk assessment is unlikely to be a ‘get out of jail free card’.
New termination rules in summary
- The legislation applies to employees covered by Government vaccination mandates and any other employees who been told by their employers to vaccinate.
- Employees must be given reasonable written notice specifying a date by which they must be vaccinated (these rules only apply to employees issued with a notice on or after today).
- Before terminating employers must ensure that “all other reasonable alternatives … have been exhausted”.
- Employers must offer at least 4 weeks’ notice (or the contractual notice period if this is longer), and they must pay it (even if the employee does not or cannot work).
- If the employee gets vaccinated before the notice expires it is automatically cancelled, unless that would unreasonably disrupt the employer’s business.
The speed at which this law was passed has sparked criticism, and some are concerned with the incursion into the rights of the unvaccinated. Whatever your view, it is now law and on a practical level, employers should avoid rushing ahead in blind reliance on these provisions – there are many potentially expensive fishhooks for the unwary.