Vaccine Mandates and Termination of Employment – Dukesons Business Law – Employment Lawyer – Business Lawyer

December 2021

This Blog isn't legal advice – if you need legal advice on any employment law issue, please contact me. I'm business lawyer (commercial lawyer) in Auckland who provides advice on a wide range of business law including employment law issues.

Without any fanfare, a new Schedule 3A has been inserted into the Employment Relations Act 2000, which sets out employer obligations when dismissing employees who, contrary to a vaccination mandate, have not been vaccinated.

Mandates – there are two types:

  • First, there is the Government mandate, whereby an employee is required to be vaccinated in accordance with a public health order.
  • Secondly, there is the mandate required by an employer, whereby an employee is required to be vaccinated pursuant to a risk assessment carried out by the employer.

In relation to both types of mandate, it isn’t simply a case of dismissing an employee who can’t or won’t prove that they have been vaccinated. The employer must explore, and consult with the employee about, all reasonable alternatives prior to deciding to dismiss the employee. It’s reasonable to assume that this process will require consideration of possible redeployment options and the employer should listen to and respond to any concerns that the employee wishes to raise about vaccination. It's possible that in some cases where the employee has reservations, more information might overcome those reservations.

In relation to the employer mandate (the second type of mandate referred to above), the employer must have carried out an appropriate risk assessment before mandating that employees or certain types of employee must be vaccinated. The employer also give the employees or the affected employees reasonable notice of the date by which they must be vaccinated.

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