Covid-19 Update - Preparing for Traffic Lights
Friday 19th November 2021
Normally I like to explain exactly what is happening for you – this time I am simply unable to do this because there is so much the government have said they will legislate but have not yet done so. Yet all the indications are that when changes are put in place you will already have needed to have taken action. I want to help you prepare now (as best you can) for the implications of the Traffic Light System.
What timing are we looking at?
What Process Should You Follow Now – if you will be affected?
I believe the only organisations really affected by the Traffic Lights, and who need to take action now, are in the following business areas: Hospitality; Close contact businesses; businesses involved with gatherings or events; and Gyms (health, education and prisons continue to be primarily affected by the Order already in effect).
If you are not one of these businesses, then traffic lights probably do not affect you in a major way. If you still want to require staff and/or customers are vaccinated, you will need to follow a Risk Assessment process – and the government have said they will have legislation coming on this. I will put out an update on this as soon as we have details – in the meantime you can talk to your H&S advisor.
What timing are we looking at?
The government have indicated an announcement on November 29. So, if they can get the legislation lined up, we could see traffic lights in place as early as December 1. But whether it is then or sometime later in the month of December, you still need to start your processes now, or risk paying staff for a period of time while they are not working (see below).
Are hairdressers mandated for vaccinations? Some people are saying they are, but the Covid website and the Protection Framework documents seem to say "close contact businesses" (of which hairdressers are a part) cannot operate at orange or red unless they require certificates – which is different from mandating that they are all vaccinated full stop.
If someone is not getting vaccinated, can they work the 4 weeks’ notice period if that includes time between the traffic light system starting and their job finishing? My understanding is that once the lights are in place, people will not be allowed to work unless they comply with the rules. So, it is possible that you will have to pay people out for this notice even though they are not allowed to work.
How does the four weeks’ notice the government are talking about relate to notice requirements in an employee’s agreement and to their use of other leave? This legislation is not out yet, but I am fairly sure that, when the government first announced it, they said it was inclusive of contractual rights (i.e. it effectively increases the contractual notice period, and you will not be able to require other leave be used in its place). Further, my understanding is that this will be notice and there is no reason it should be unpaid. I have heard others say it should be unpaid because the employee is not "able" to work - this is the same argument for not paying staff when we were locked down and there was strong legal argument against this. Note that the 4 weeks can only start at the end of consultation over the stance you are going to take re vaccinations.
Can unvaccinated staff work at green in a close contact business if you are choosing to not use the vaccination certificate for clients? Yes, they may - just need the 1m distancing between all customers, and face coverings.
Can you have a policy that allows unvaccinated customers at a green light, but vaccinated at orange or red lights? I have seen nothing to say you cannot do this. I imagine this will be clearer once we see legislation – so if this is what you want to happen, you should proceed to consult along these lines, but indicating any decision will be subject to any legislation that gets passed.
- Work out whether Traffic Lights affects you. You may need to decide whether you are Hospitality or Retail, for example. Or whether you can split out a close contact or hospitality part of the business from the rest. To assist you:
- you can look at the Protection Framework https://covid19.govt.nz/assets/COVID-19-Protection-Framework/COVID-19-Protection-Framework-22-October-2021.pdf
- you can consider the sort of restriction definitions that existed under the current Covid levels – where the food and beverage selling restrictions were primarily around consuming on the premises (assuming the government may use them as a base)
- If the Traffic Lights do apply to you, consider the impact on your business if the light is red or orange. At this stage you should expect we will start at Orange (apparently based on current cases and the level of vaccination)
- Consider what support is available if you are unable to operate because you are not using vaccination certificates and have to close at least in part? Nothing has yet been specified, but you can be sure it will not be as much or as easy as if you do require certificates. You need to proceed on the basis that there will be no support for overall business losses if you have the opportunity to limit your business to those who are vaccinated and choose not to. (Note that certain businesses including pharmacies and supermarkets will not be able to make that choice).
- Consider what you may need to do to move from “not requiring” to “requiring” vaccination certificates (a consultation process, but one which can be run in advance). No guidance as yet – but I have seen nothing that says you cannot have a policy that stays open for all under green (e.g. hospitality maintaining 1m separation) but that requires certificates for orange or red, to avoid having to go contactless.
- You will then be in a position to decide for good reason whether or not to require your customers to produce vaccine passes. Bearing in mind that if you do you will also have to require all staff to be fully vaccinated. AND THIS WILL REQUIRE A FAIR PROCESS.
Fair Process required if you decide you may want to go to requiring Vaccination certificates:
- You must consult with all staff because of the potential impact on employment of anyone who is unvaccinated.
- To consult you will need to:
- set out why you want to change – in this case it is not a full H&S risk assessment, but simply that not making this requirement would mean you would have to close or go contactless etc, under Orange or Red lights, with no indication of any government support. This is simply too risky for the business. So, a financial decision based on Traffic Lights motivates this requirement.
- Be specific about how you want to implement the change – including and specific differences in operations under orange or red from a green light
- Give staff a week or two (minimum) to give you feedback (or confirm they have no feedback to give)
- Then you can implement the policy. Where this means someone is going to lose their job if they do not get vaccinated, (or if it appears to be possible to have them work only at Green), you should now give them 4 weeks’ notice of the change (or more if their IEA has more). I believe this is paid – so if you go beyond the traffic light start date, you’d be paying them not to work
Please contact us for help in ensuring your process and the documentation you use are fair.
If you are not impacted by Traffic Lights, then you will need to manage your workplaces through H&S regulations, policies etc.
Essential HR are here to help. For ongoing help call us on – 03 3650532, or you can contact Mike directly on 027 2808546 or mike@essentialhr.co.nz.
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