Covid-19 - Employment Law Update February 2022

An update on mandatory booster vaccinations, new mask rules and the three phases of Omicron in the community. 

Mandatory booster vaccinations 

On 21 December 2021 it was announced that COVID-19 booster vaccinations would be mandated for workforces covered by the COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccinations Order). This came into effect on 23 January 2022. 

There are different mandated dates for when booster vaccinations are required for the workforces covered by the Vaccinations Order: 

• Border and MIQ workforces, if eligible for a booster, are required to have this by 15 February 2022 
• Health and Disability workforces, if eligible for a booster, are required to have this by 15 February 2022 
• Education, Corrections, Police, Defence, and Fire and Emergency workforces, if eligible for a booster, are required to have this by 1 March 2022. 

If the worker is not eligible for the booster by 15 February 2022 (i.e. there has not been a four month period since the second dose of the vaccine was received), then the worker must have their booster vaccination 183 days after the date of their second dose of the vaccine.   

Employers will need to consult with employees regarding the requirement for a booster dose of the vaccine, based on the dates set out above.  

A reminder of the requirements pursuant Schedule 3A of the Employment Relations Act 2000 for those workers covered by the Vaccinations Order: 

• An employee is entitled to reasonable paid time off during working hours to receive the vaccination, provided that time off would not unreasonably disrupt the employer’s business, or the performance of the employee’s duties; 
• Where and employee’s employment will be terminated due to the COVID-19 Public Health Response Act 2020/Vaccinations Order, the employee is entitled to the greater of: 
• 4 weeks’ paid written notice of termination; 
• The paid notice period specified in the employment agreement related to termination of employment. 

New mask rules 

Under the Red Level setting, proper masks must be worn at most indoor settings, including food and drink venues, close proximity businesses, events and gatherings, unless people are eating, drinking or exercising. 

This means that scarves, bandannas, and the like are no longer acceptable. The mask should fit/cover your nose and mouth correctly and be worn over both! 

For those workers subject to the Vaccinations Order, there is now a requirement to wear a medical-grade mask, meaning an R2 or level 2 mask or above, including the blue medical grade masks. A note that not all blue masks are medical grade, so you will need to check with the supplier whether it is or not. 

When school students return to school in the coming weeks, every student (unless medically exempt) is required to wear a mask, including on Public and Ministry of Education funded transport services. 

Three Phases of Omicron in the community 

In the Red Level setting, business is encouraged to work from home if possible – we recommend reviewing and updating your Covid-19 policies and Work from Home policies, considering the three phases set out below, and the potential impact on the business. There may be changes you wish to make from Lockdown/Alert Levels, including creating bubbles of employees working from the office/onsite/at home. Consult with your employees regarding possible changes to your policies, and/or introducing new policy. 

Be clear with any expectations the business is setting with respect to notification of illness/contact, isolation and testing requirements. 

At Phase one (where we are currently at): 

• PCR testing for people with symptoms, close contacts and international arrivals. 
• Cases identified via a positive test will be notified by phone call – close contacts also notified by phone call. Push notifications of locations of interest are also used to identify contacts. 
• Positive cases must isolate for 14 days, with contacts isolating for 10 days – the Short Term Absence Payment and Leave Support Scheme are available, information on these support schemes can be found at www.workandincome.govt.nz  

Phase two 

Where cases have spread in the community and the aim is to minimise spread and assist vulnerable communities: 

• Rapid Antigen Tests (RAT) may be used in addition to PCR testing for people with symptoms and close contacts. PCR test will be used to confirm RAT.  
• “Test to Return” if required for asymptomatic healthcare and critical workforce. “Critical workforce” has not yet been defined, but is expected to cover infrastructure and supply chain workforce. MBIE is currently working on this definition. 
• Cases identified via a positive test will be notified by text and directed to online self-investigation; phone-based interviews will take place where required and symptomatic household members will become a probable case for management purposes. 
• Push notifications of locations of interest will still be used to identify contacts. 
• Positive cases must isolate for 10 days and contacts isolate for seven days. There will be support for most positive cases to isolate at home, with alternative accommodation options available across the regions. 

Phase three 

Where there are thousands of cases per day: 

• PCR testing will only be for priority populations. Cases will be notified by test and directed to online self-investigation. Symptomatic household cases will be considered positive without testing. Only highest risk contacts will be traced and required to isolate, there will be limited use of push notifications. 
• “Test to Return” for contacts who are healthcare and Critical workforce. 
• Positive cases must isolate for 10 days and contacts isolate for seven days. 

Communicating with your team 

With Omicron in the community, and the recent change to the Red Level setting, employers will be considering the impact of restrictions on their businesses. As with other strains of COVID-19, people will have different levels of comfort with being in the community.  

As always, proactive communication by both parties, in line with mutual obligations of good faith, will be key to working through any issues which may arise. 

If you have any questions, our specialist employment team at DTI Lawyers is here to assist. You are welcome to call us on 07 282 0174 or email us directly.