Vaccination Policy and Force Majeure Provisions22 September 2022
Now that the traffic light system has been removed and other changes implemented, questions arise as to whether an employer can maintain a policy requiring staff to be fully vaccinated, wear masks, or comply with other requirements.
By way of background, as a result of the traffic light system ending:
- All mask wearing requirements have been removed, except in healthcare and aged care facilities.
- Only people with COVID-19 are required to isolate for seven days. Household contacts no longer need to, but must RAT test daily.
- All Government vaccine mandates end on 26 September.
- Leave Support payments are still available for employees who have COVID, but not for those who are household contacts.
If you have a vaccination policy in place, you should consider reviewing its relevance. An employer may continue an existing vaccination policy or introduce a new policy, provided a risk assessment process supports there are genuine health and safety grounds to do so. This also applies to mask wearing and other conditions.
From a practical perspective, if you’ve invested in establishing a requirement for staff to be vaccinated, there is a commercial case for protecting that investment. If virtually all staff are already fully vaccinated, you can maintain that position by only hiring fully vaccinated candidates. However, you will need to consider that in a tight employment market, that may result in your limiting the talent available to you.
Back in time, force majeure provisions in employment agreements were reasonably common, but in more recent years their use fell away for a number of reasons, such as unions refusing to agree to their inclusion in collective agreements or because the provisions were rarely used and therefore considered to be of little value. The COVID-19 experience has created renewed interest from employers to include such provisions in employment agreements.
These provisions typically provide for non-payment of employees and /or termination of employment when the business suffers a significant event such as a pandemic, epidemic, fire, flood, earthquake etc with the result the employer is unable to provide work for employees. It’s a lot easier to have such provisions in an agreement should they be needed, rather than try to negotiate them at the time. The recent CHH case shows the difficulty for employers in requiring employees to take annual holidays in such circumstances.
For further information call Tony Teesdale 021 920 323, Justine O'Connell 021 920 410 or Michelle Battersby 021 993 735