Employers around the country trying to avoid more Covid disruptions are caught between four conflicting laws and want government to provide clarity.
Without parliamentary guidance, companies will have to dip their toes into Bill of Rights Act, health and safety legislation, Human Rights Act and the Privacy Act in order to make decisions on the No Jab/No Job and vaccination passport dilemma.
Waikato Chamber of Commerce chief executive officer Don Good says the sooner this is settled by Parliament the sooner businesses can get on with recovering from the economic hit from the current lockdown.
“The resolution to this issue must be government-led because it’s legislated that employers must keep their employees or customers safe or they face the consequences as evidenced by Worksafe NZ taking the White Island operators to court.”
Under the bill of rights New Zealanders cannot be forced to take medication including a vaccine, while the Human Rights Act says a person can’t be discriminated against based on their health and it’s ok if they aren’t vaccinated.
Health and Safety legislation might mean everybody needs to be vaccinated in a workplace, including customers but under the Privacy Act you can’t ask people if they are vaccinated without good reason.
Lawrenson Group founder and CEO John Lawrenson would like the government to tidy up the contradictions in the law.
“It’s super critical to our survival to get some clarity around this.
“I’m happy to comply with whatever I’m told to do but I would like to see some certainty around the legalities and ethics of it.
“There are a number of conflicting pieces of legislation and ethical considerations, and I think that’s a very murky situation to be in.’
Good believes this uncertainty is a minefield for businesses leaving them open to being taken to court.
“Until the government resolves the issue and gives both employees, customers and business certainty, there’s going to be a lot of tension and litigation to resolve it. The issues for government are the health and safety act, the bill of rights, human rights act and privacy act, and how that mix of legislation covers the safety of employees and customers alike.”
The recent case where a border work tested COVID-19 vaccination legality in court, Good says, highlights the urgent need for government to legislate.
“If Customs, with its crucial border control function, cannot implement a no jab/no job policy without court challenges then what hope has a small to medium-sized enterprise if taken to court?”
The court decided the COVID-19 Public Health Response (Vaccinations) Order for certain border workers to be vaccinated was reasonable, and the border worker’s dismissal stood.
Good says having the government order in place made it easy for the Crown prosecution to achieve the judgement against the border worker’s case and it would be difficult for businesses to face these sorts of legal proceedings.
“Because it (vaccination) was mandated by the government for border workers…the judge could quite comfortably rule for NZ Customs.”
Air New Zealand CEO Greg Foran recently announced the airline will require all adult international passengers to be fully vaccinated from February 1 next year with decisions around domestic travel still to be announced.
This vaccination policy will also include the airline’s customer-facing staff who make up about 75 per cent of all of its staff.
Using the International Air Transport Associations (IATA) Travel Pass app, which would let travellers know what they needed before travelling. Using decentralised technology, passenger information is not held in a central database and they can share their data or not and delete their data at any time.
“The airlines are leading the way businesses across the globe are heading.
“They are heeding the advice of their governments and looking to protect their staff and customers.
“Certainty builds trust and trust wins the hearts and minds of staff and customers alike.
“Will we see malls, supermarkets, landlords and all manner of businesses adopt a hard line on vaccination?
“With Worksafe able to prosecute business owners and management if they fail to protect their staff and customers New Zealand companies are between a rock and a hard place.
“Only this government can legislate a solution,” Good says.
Like many hospitality businesses, Lawrenson feels less certain about business forecasting than he did in the
“I need to have a pretty good idea about what’s going on and what it means for my cash flow, for my staff to know how they might be affected, for my obligations to my landlords and suppliers.
“There’s so little information for me to do any kind of planning; it really is an information vacuum.
“I just feel like the Prime Minister thinks she can leave everything to the last minute so she can get all the variables.
“There needs to be a line in the sand, and she needs to say this is what we’re doing and we’re doing it by this day and this is how it’s going to work.”
While businesses can’t insist that their workers get the jab, there are some that are providing incentives to encourage vaccination in their workforce.
Including big players like Westpac, Steel & Tube, Vodafone, Fisher & Paykel, Fletcher and SkyCity Entertainment Group offering incentives such as cash, paid time off, extra holidays and one-off bonuses.
Lawrenson says he wouldn’t go as far as incentivising staff because he sees it as a personal responsibility to make the decision to vaccinate or not.
“As an employer I don’t think it is my place to be pushing my staff in either direction.
“For me it’s about personal choice and I think it should remain that way.
“However, we are trying to make it easy for our staff.
“When people come to work and say ‘I’m getting the Covid vaccine’ and the next day they need a sick day, we say absolutely yes we will pay for sick leave.”
While the government remains uncertain about what a vaccination mandate might look like, vaccine passports may provide businesses another light at the end of the Covid tunnel.
Local events, festivals, tourism and hospitality operators are some of the hardest hit by lockdowns and changes to the alert levels, and Good believes vaccine passports will provide a sense of normality and financial security for struggling businesses.
“There’s a great deal of intelligent activity happening overseas we can learn from.
Europe is opening up and people are going to festivals and various countries have their systems in place and working, and we can learn from overseas,” he says.
As with the no job/no jab issue, Lawrenson believes the guidance needs to come from the government and with legislation to back up any future mandates.
“Let’s say there’s going to be vaccine passports and your staff are going to be required to get vaccinated then what we would like to see is an executive order or some legislation that says if I have to terminate a staff member that I’m protected from a wrongful dismissal suit or that I deny someone access to The Outback that I’m protected from being taken to the Human Rights Tribunal because I denied them on medical grounds (Covid vaccination).”
Good hopes the government will make an announcement soon that will give businesses a clear pathway to navigate Covid-19 uncertainties without having to resort to lockdowns.
“There is a huge amount of work that this government is going to have to get done to give us certainty so we can get on with living as normally as we can with Covid.
“Business needs certainty so they can just simply get on with business, so they can protect their staff and protect their customers.
“We welcome that happening as soon as possible.”