Covid-19 mandates: Bosses can ‘require’ staff to return to work – employment lawyer Jennifer Mills

“The tide has turned. Get back into the office, team”.

That’s the advice from an employment law specialist after today’s announcement by Prime Minister Jacinda Ardern about mandates ending next month.

But employers will need to conduct their own health and safety risk assessment when it comes to unvaccinated workers, said Jennifer Mills of Jennifer Mills & Associates.

Meanwhile, business groups have mixed reactions to news that indoor gathering limits are increasing from 100 to 200 people from Saturday and the end of vaccine pass use from April 4.

Employers will be able to lawfully require employees return to their workplaces after April 4 when vaccine passes will no longer be required to be used.

“The logical extension of what the PM has said today in dropping the mandates relates to an employer’s ability to require employees to return to work. I believe now it’s reasonable to ask people to come back,” Mills said.

Many businesses had work-from-home policies that allowed a degree of flexibility but it would be lawful and reasonable for staff to receive a demand after next month, Mills indicated.

Asked about unvaccinated people and how employers might view them in the workplace, she pointed to Jacinda Ardern’s comments. “I took from that that because there have been high vaccination uptakes, an employer needs to conduct their own health and safety risk assessment.

“Risks for unvaccinated workers might not apply. But employers need to look on a case by case basis,” she said.

The signal from the Government was there aren’t the health and safety risks in the workplace there used to be before vaccination rates rose, she said.

“We need to put aside exceptions like immuno-compromised cases. But I think employees will be hard-pressed to successfully challenge employers asking them to return. I can’t see them winning that, except in exceptional circumstances,” she said of possible employment law cases.

But employers will also need to be reasonable to allow a period of time to adjust their personal circumstances, Mills stressed.

Additional childcare or home care support might be needed to enable employees were able to make adjustments and to change, so a transition period could need to be built into an employer’s request, she said.

Some employment lawyers were today taken aback by the speed of the change, saying they had expected six weeks but not a fortnight.

What about masks?

Under the new Covid response framework settings, limits on outdoor gatherings will be scrapped from Friday, while indoor capacity limits will rise from 100 to 200.

Vaccine passes will no longer be required to be used from April 4, and the same for QR codes and scanning from this weekend.

Mask wearing also won’t be required in outdoor venues, but the Government stopped short of ending mask use indoors.

Retail NZ welcomed the Government’s announcement, but said it urgently needed to act on mask rules.

“It’s great news that we are now moving closer to normality,” Retail NZ chief executive Greg Harford said.

“Moving away from restrictions is a signal to customers that people can get out and about, and Retail NZ is encouraging customers to support local businesses.”

But Harford warned that the loose self-exemption process for mask-wearing had created “significant tension” and become a “flashpoint of aggression for many customers”.

“If the Government truly believes masks remain important, then it needs to tighten up significantly on the exemption process. Equally, if masks are no longer required as an effective tool to manage Covid-19, then the Government should simply make them optional,” Harford said.

“At the moment, the Government is telling us that it is important to wear masks. Despite months of pleading from Retail NZ about the levels of aggression and stress the current scheme creates for retail workers’ mental health and wellbeing, the Government is not prepared to put in place a proper process for managing mask exemptions.

“Tens of thousands, if not hundreds of thousands of Kiwis are claiming to be exempt from the mask requirement, yet there is no formal process for verifying this with medical doctors.”

'Little difference'

Hospitality NZ said the new Covid-19 settings did not go far enough.

Chief executive Julie White said increasing the capacity cap for indoor venues would make little difference for larger venues.

“Moving the cap to 200 is a waste of time, because people still have to be seated. Why 200? It’s nonsensical,” she said.

“The cap should be pinned to the capacity of the venue. Lifting it will not work for bars and other night venues. The seated model does not work for them, even with a higher cap.

“These are businesses that have been disproportionately impacted through the whole two years of the pandemic.”

White also questioned the logic of removing outdoor limits while having indoor seated limits.

“The removal of outdoor limits while having indoor seated limits is also nonsensical. You can play a game of rugby where players are all over each other, but when they go for a beer later, they have to be seated and spaced apart. How ridiculous is that?”

The Government also announced it would be ending its controversial vaccine mandates in education, police or Defence Force workers and those workplaces using them from April 4.

Marisa Bidois, Restaurant Association chief executive, praised the removal of mandates but echoed White’s concerns around indoor restrictions.

“The removal of mandates and increase to gathering numbers is a step forward in our path to revival and recovery, however, the seated and separated rule is still a major issue for our industry,” she said.

“The increase of limits to 200 while the seated and separated rule remains, will have little to no impact on our small, medium sized business which make up the majority of the industry.”

A survey last week of Restaurant Association members found 77 per cent of respondents supported the removal of the requirement for hospitality workers to be fully vaccinated.

The same survey indicated that 87 per cent of members would support changes to the requirement for customers to present a My Vaccine Pass.

“We are hopeful that the changes to the number limits at red, opening of the borders and gradual removal of mandates will give a boost to consumer confidence and ease some of the challenges our industry has been facing,” Bidois said.

Heart of the City chief executive Viv Beck said while today’s announced changes would make a difference, the lack of certainty around a move away from the red setting was a blow for the Auckland city centre.

The country’s traffic light setting won’t be reviewed again until April 4.

Under an orange setting there would be no capacity limits for indoor venues, according to the updated traffic light framework.

“We really needed to see more certainty confirmed today – particularly a move away from red,” Beck said.

“The reality is that whilst all businesses can open under red there is a view that it means stop. Many larger businesses made their working from home policies around red being a work from home – we need to see a shift to orange to change that narrative.”

BusinessNZ chief executive Kirk Hope said changes to gathering limits and dropping vaccine mandates for most workplaces was welcome progress.

Hope said vaccine mandates have done their job, allowing the country to reach a 95 per cent vaccination rate, “but with the strain Omicron has put on the workforce, it’s time to start reintegrating workers.”

“Businesses are capable of making decisions to manage the risk of Covid in their workplaces and have the tools they need to keep their staff and customers safe.

“These tools include vaccination, testing, boosters and ventilation, on top of rigorous personal hygiene practices.”

Hope noted, however, that some sectors remain constrained.

“Government advice going forward needs to be crystal clear on requirements as to when we can expect to move to the Orange setting, under the Covid Protection Framework.

“Any advice from MBIE around vaccination mandates should ensure any small and medium businesses understand what they can and can’t legally enforce, so they don’t find themselves in employment court.”

Auckland Business Chamber chief executive Michael Barnett said it was now up to individual businesses to continue to manage risks and implement workplace safeguards to protect staff and operations.

“The hospitality and events sectors will be relieved … but with or without mandates, vaccine passes or scanning, the responsibility of all employers is to protect lives and livelihoods,” he said.

“We have to live with Covid. Business manages risks every day and can be trusted to do what is right for their people and the community. We don’t need a government mandate now to keep workplaces – and business operations – safe and healthy.”

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