COVID-19 - Employment matters


There are three stages schools need to work through with all school employees, in relation to the Covid-19 Public Health Order (the Order) obligations on both individuals as well as education service providers to reduce as far as possible, the risk of Covid-19 affecting tamariki and communities as a whole.

  1. Inform/Engage/Support – all staff and;
  2. One on one engagement (and/or possibly with groups) with any staff who have raised concerns – informally, and;
  3. Moving towards a formal employment process to consider the long term viability of a non-vaccinated person’s employment status

The Vaccination Order makes COVID-19 vaccinations mandatory for anyone working onsite at a school who may come into contact with students. It applies to:

  • all school staff (teachers, support and other onsite staff)
  • contractors 
  • volunteers
  • anyone else engaged to provide onsite services 

All education staff who may have contact with children must have had their first jab by November 15 and be fully vaccinated by January 1, 2022.

NZSTA has prepared guidance/advice/resources and references to support you to follow the necessary steps in the process:

  1. Good employer processes – stand downs and termination.
  2. We’ve informed/engaged and supported – what now? Moving towards standing down employees.
  3. We’re moving towards termination of employment – what do we need to do?

Boards and principals need to be clear about the scope of their delegated authority in relation to the termination of school staff.

Throughout any employment process, there are some basic principles which if applied, also ensure the risk to boards is minimised. Those principles are:

  • Principles of natural justice.
  • Maintain a calm, understanding and open demeanour at all times.
  • Kindness and compassion do not weaken a process.

Process to follow after you have had the Covid-19 consultation conversations

25 November 2021

This guidance is intended to support school boards and principals  to implement the COVID-19 Public Health Response (Vaccinations) Order 2021 (the “Order”), which took effect on 25 October 2021.

This guidance focuses on the stages to work through, after the initial “engage/inform/support” consultation stage may have now been completed and is intended to assist Principals and Boards in working through a formal employment process that could lead to the termination of employment of unvaccinated employees whose work is covered by the Order. The guidance follows the process flowchart that has been issued by the Ministry of Education but provides some greater detail on the specific requirements.

As per the scope of the order, principals are covered by the Order as an employee of the board. If a principal is opposed to being vaccinated, a conflict of interest may exist and is required to be minuted. Then the board needs to identify an alternative suitable person to manage the implementation of the Order requirements.

The Order does not provide a right for a school to terminate an affected person’s employment. Rather, the effect of the Order may be that an affected person engaged by a school may no longer be able to perform their duties, and as a result the school may have a right to terminate the affected person’s employment.

Schools must still ensure that they meet their obligations under the Employment Relations Act 2000 and relevant employment agreements to be a fair and reasonable employer, acting in good faith at all times, when considering possible termination of employment.  A termination must be carried out in a procedurally fair manner. This guidance is designed to assist with this process.

Upon identifying that an employee is unvaccinated, the key steps to be followed in giving effect to the Order are set out below:

1. Initiate a formal employment process to seek and confirm final feedback from the employee about the impact the employee’s decision to not get vaccinated could have on their ongoing employment, as the employee would not have been permitted to perform their role onsite after 15 November 2021.

  • A letter must be provided to the employee which sets out in writing:
    • the reasons why continuing to work in their role would mean the employee is in breach of the Order, and cannot carry out duties at the school;
    • the basis on which the employer is considering termination of employment, i.e, that as the employee has not been vaccinated, they cannot be present at school when students are present or undertake work that may involve contact with students and/or as their role requires them to be onsite when students are present and/or may involve contact with students, they can no longer carry out their role;
    • arranges a meeting date and time to hear the employee’s feedback and allows the employee reasonable time to respond;
    • advises the employee of their right to representation or legal advice

2. Meeting with employees

Once the employee has been advised in writing the basis on which the employer is considering termination of employment, i.e, that as the employee has not been vaccinated they cannot be present at school when students are present or undertake work that may involve contact with students, At the meeting you should:

  1. outline the purpose of the meeting and advise the school is considering terminating the employee’s employment on the basis they have not been vaccinated;
  2. outline the process undertaken to date, including any previous conversations with the employee about the impact of the Order on their role;
  3. invite the employee to respond and provide feedback;
  4. if the employee wants to, explore the reasons why the employee does not wish to be vaccinated (noting they do not have to share their reasons if they don’t want to);
  5. ask any questions you need to, to clarify or understand the employee’s response;
  6. outline considerations or possible suitable alternative working arrangements or redeployment that have already been raised, explored and discussed;
  7. ask the employee if the employee has thought of any possible suitable alternative working arrangements;
  8. conclude the meeting by thanking the employee for attending, advise you will consider the feedback provided, advise a final decision will be communicated in writing, and if you can, give a timeframe on when this might be.

Schools must keep an open mind, genuinely consider employee’s feedback, and genuinely consider alternative options and working arrangements where feasible.

After considering the employees feedback and if there are no suitable alternative working arrangements or redeployment opportunities a decision to dismiss can be reached.

The principles of natural justice should be followed.  

3. Standing down employees

Employees will have been stood down whilst the school completes the employment process. The template Stand-down Letter should be issued to workers who were identified as not having been vaccinated by the close of 15 November 2021. This letter  informs the employee they stood down whilst the remainder of the process is followed. Stand down from the workplace will in most instances be paid.

It is important to note that if an employee receives their first dose of the approved vaccine after 15 November, but before notice of termination is given, the employee will then be compliant with the Order, and the notice may be withdrawn. 

Making the decision to terminate and informing the employee

The school should genuinely consider the employee’s feedback before reaching a decision. NZSTA termination template letter is attached and can be used, once a correct process has been followed.

When the decision to terminate employment is made, the employee should be engaged with in a respectful manner, maintaining dignity and mana at all times. 

Delegations
You should check any policies your school has in place about what delegations the principal has in relation to termination of employment.

Please note that the delegation may be different depending on whether the employee is teaching staff or a non-teaching staff member.


Where the Principal has delegated authority
Where the principal has clear delegated authority to terminate a staff member, then the principal can carry out the process set out above.

Where the board alone has powers to terminate an employee
Where the board alone has powers to terminate an employee, the board should follow its existing policy and procedures for considering termination of employment.

Please note:
Some employees who are opposed to getting vaccinated will raise objections and are likely to lodge a personal grievance (PG) if they are dismissed.

To reduce the potential liability of the school / board, before dismissing anyone it is vital that you ensure the school has followed the appropriate steps and has adequate documentation to evidence the processes undertaken, to ensure that the process that the school has followed is appropriate.

If you receive notification of a personal grievance (PG), please email NZSTA immediately, at eradvice@nzsta.org.nz and make sure that you have attached a copy of the PG letter, copies of all your correspondence and related notes as well as any other relevant information. We also recommend you notify your insurer.

It may affect your ability to claim on the school’s policy of insurance if NZSTA or an approved provider is not consulted prior to dismissing an employee for their refusal to get vaccinated / to confirm their vaccination status.

Having the “Covid” conversation

At this point in time the first step, which many of you will have already undertaken, is to inform your staff of the requirements of the vaccination order and encourage them to get vaccinated. 

You also need to request the required contact and vaccination information. 

Template information you can use for this first step is: 

It is good to keep in mind that the majority of teachers have or are in the process of complying with the duty to be vaccinated and they have already provided schools with the required information. 

So, there is no need to continue including these staff in ongoing information as per the above bullet points. 

Your focus in this first step is on the staff who have not yet provided you with the required vaccination information or who have already informed you of their reluctance or resistance to comply with their duty to get vaccinated. We hope this wouldn’t include your principal, who is the leader of the school, however, it’s possible the Board may be faced with this situation.

For these staff we suggest the following process (on an individual basis) leading up to the 15 November 2021: 

  • continue to actively discuss with them the benefits of vaccination;
  • consult with them to establish the reasons why they are not vaccinated;
  • discuss with them the requirements of the first vaccination by 15 November – will they get it or not;
  • discuss alternative duties with them if they have not had their first vaccination by 15 November – there is no obligation on the employer to provide alternative duties but there is an obligation in good faith and with an open mind to consider the option of alternative duties;
  • discuss with them that if no alternative duties can be provided then after 15 November they may be put on leave – this may be unpaid, or the Board may consider that paid leave should apply. Please note the Board’s involvement here as paid leave comes at a cost the school, for alternative relievers;
  • encourage them to seek advice from their respective unions. Union advice on the mandating vaccination order can be found on the PPTA and NZEI websites. 

We reaffirm the steps that need to be taken to consult with an employee whose work is covered by the Order and who is not vaccinated. The consultation is about the impact of the Order on their ongoing employment and must occur before any decisions about ongoing employment can be reached.

If an employee has not received their first and/or second dose of the Covid-19 vaccine, and as a result the employee is unable to carry out work at the school, the school may be able to terminate that employee’s employment after having followed a fair employment process, including consulting with the employee and seeking their feedback about the impact of them not being vaccinated on their ongoing employment. This guidance is designed to assist with this process where an employee has not been vaccinated as required by the Order.

Medical Exemption

26 November 2021

The Covid-19 Public Health Response (Vaccinations) Order 2021 was amended to clarify the requirements relating to medical exemptions. 

All medical exemptions for the education sector need to be approved by the Director-General of Health.
 
The revised Order is available here.
 
What you need to know

  • Medical exemptions issued prior to the Order being amended on 08.11.2021 were deemed invalid
  • Exemptions issued by DPA relating to face coverings continue and are not affected by the new Public Health Order.
  • People who currently had  an exemption on medical grounds or consider that they need an exemption needed to apply for a new exemption.
  • Medical Exemptions are specific to individuals.
  • Only a medical doctor or nurse practitioner can apply for a medical  exemption. They assess the individual and, if they consider they may meet  the criteria, will apply for an exemption to the Ministry of Health (MoH) on your employee’s behalf.
  • The MoH have already advised that very few people (in the order of 100 or 200 people nationally) require a medical exemption.
  • If you have an employee who considers that a medical exemption should apply to them they must provide you with written confirmation from a medical doctor or nurse practitioner that states that the doctor or nurse is applying for an exemption on their behalf.
  • From the 16th of November, these people would not be allowed to work on site where students may be present and you should have by now, made arrangements with  them around working from home or with alternative duties where possible.
  • Where  remote working or alternative duties are not feasible, and the employee has provided confirmation from their doctor or nurse practitioner that they have sought  a medical exemption on your employee’s behalf, then you should provide leave with pay while the employee waits for their application to be processed by the MoH during Term 4 2021.
  • Paid leave may be paid sick leave or paid leave approved by the board.
  • Medical exemptions are only granted for a maximum of 6 months currently, so employee’s will need to reapply if their circumstances have not changed. Schools need to note the applicable end date and enter into further discussions with the employee close to the expiry of their medical exemption.

How the medical exemption process works
 
An exemption can only be applied for by a medical doctor or nurse practitioner.
 
The doctor or nurse practitioner needs to assess if the employee meets clinical criteria that have been specified for an exemption by the Director-General of Health.
 
If the doctor or nurse practitioner considers that there are reasonable grounds for believing that the employee meets the specified criteria for a medical exemption, they can complete a request for an exemption on behalf of the employee and submit this to the MoH for consideration.
 
The MoH will consider exemption requests that are submitted in accordance with these requirements and the Director General of Health will decide:

  1. if an exemption is to be granted; and
  2. the duration of the exemption

The MoH notifies the doctor or nurse practitioner and the individual in writing of the decision.
 
Exemptions may be issued for a maximum of six months, and if the exempted employee believes a further exemption is required at the end of that period, their doctor or nurse practitioner will need to apply for a new exemption.
 
See more information on the exemption process is available from the Ministry of Health.
 
This includes a flowchart summarising the process that doctors and nurses will follow, and the clinical criteria for an exemption. The MoH’s published advice is clear that only a small number of cases are expected to meet the exemption criteria.
 
If  an employee is issued an exemption under the new process
 
Any affected worker (voluntary and paid) who qualifies for an exemption must provide you, as their employer, with a copy of the exemption. You must then record the exemption in the school  Vaccination Register.
 
If you receive written advice that a staff member has an exemption, we recommend you take the steps outlined in the flowchart previously provided.
 
Next steps: You should carry out a school and occupational based health and safety risk assessment in consultation with the  employee to determine what control measures may need to  be put in place to minimise risks to the exempted person, other staff, and  akonga. The Ministry of Education (MoE) has provided guidance on undertaking a H&S risk assessment with an exempted employee. 

If an employee previously provided a medical exemption but is no longer eligible under the revised Order
 
The only valid medical exemption to the vaccination requirements is one that is issued by the Director General of Health under the Health Order.
 
From 8 November 2021, any other exemptions before this date are no longer valid, and the employee needs to seek advice from a medical doctor or nurse practitioner. 
 
Schools are encouraged to  continue to support your employee to be vaccinated. If, however, your employee continues not to be vaccinated after 15 November 2021, they cannot attend on site and we recommended you take the steps outlined in the flowchart previously provided.

What does a good employer process look like?

While the vaccination order for staff is a legal requirement, any process undertaken by the employer to meet the compliance requirements must be done in good faith as is required by the Employment Relations Act. 

This means that as an employer, schools are obligated to act in good faith, which means both the employer and employee must be responsive and communicative. This requires both parties to:

  • act honestly, openly, and without hidden motives
  • work constructively and positively together
  • give each other relevant information ahead of when it is needed and as soon as possible; all information given should be carefully considered
  • be fully honest with each other
  • raise concerns or issues as soon as possible and respond to these quickly
  • keep an open mind, listen to each other and be prepared to change opinion about a particular situation or behaviour
  • treat each other with respect

Most importantly, the above points set out that any decisions which may impact on the employment of an employee, including the continuation of their employment, requires that the employee is provided with an opportunity to respond to any proposed action.

Therefore, it is essential that any discussions or written correspondence, including emails and formal letters, do not set out any predetermined outcomes as this could give rise to a personal grievance for unjustified disadvantage.

Some practical tips on implementing the above good faith points: 

  • meet on an individual basis with them to discuss their situation and the potential impact of some of their views on their employment 
  • after any discussion / meeting, follow up with an email summarising the process and your understanding of the employee’s situation to date
  • continue to invite the employee to seek advice and refer them to relevant information provided by MoE

The importance of process regarding schools working through vaccination with staff is paramount, as any employment challenges raised by staff will be based on procedural shortfalls and not about schools having invalid grounds to enter into a process with the employee about the vaccination order. The school, as a crown entity is acting upon government direction. 

The steps to demonstrate that you have done all that you can to be a fair and reasonable employer are found in Section 103A Test of Justification, from the Employment Relations Act 2000.  

103A Test of justification

(1) For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2).

(2) The test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.

What information needs to be collected?

You must ask employees to provide you with evidence of their vaccination status and you are obligated to record the following information for the employees, workers and other volunteers you engage: 

1. the person’s full name:
2. the person’s date of birth:
3. a telephone number and email address by which the person may be contacted
4. whether the affected person is vaccinated:
5. if the person is vaccinated,—

(i) the name of the COVID-19 vaccine or vaccines they have received; and

(ii) the date or dates on which they received a dose of the vaccine or vaccines:

6. if the person has received one dose of the vaccine, but not two doses of the vaccine, the latest date by which they must have the second dose of a COVID-19 vaccine to be vaccinated (1st of January 2021): 

7. if the person is not vaccinated with any dose of the vaccine the latest dates by which they must have their first and second doses of a COVID-19 vaccine to be vaccinated (i.e., 15 November 2021 and 1 January 2022):

8. if the person has an exemption from being vaccinated (which is very rare),—

(i)    confirmation of that fact; and

(ii)    a copy of the exemption or authorization (i.e., a letter from a suitably qualified health practitioner stating that the employee cannot or should not be vaccinated on medical grounds).

Secondary Schools must have a Vaccine register in place by the 9th of November.

The need and requirement to maintain a vaccination register is not new and has been in place for years e.g., Tetanus, MMR. 

Employees (and other workers) are obligated to provide you with the necessary information so you can meet the requirements set out above and they are also obligated to keep you up-to-date as soon as practicable if some of the information changes. 

You are obligated to store information about your employees’ vaccination status securely. The Privacy Act allows for certain types of medical information to be collected.  

You can accept any legitimate proof of vaccination which assures you that the employee is fully vaccinated. Ideally, this will be an entry on the My COVID Record website, but it could also be an email, or an SMS that the staff member has received from their vaccine or medical provider, or the BookMyVaccine website. 

When they provide proof of vaccination, please thank them for their cooperation and for looking after their colleagues and the students.

If a staff member refuses to provide you with proof of vaccination, you must assume that they are unvaccinated, and you should advise them of this assumption and act in accordance with this. 

Collection and storage of personal information – what you need to know

The usual requirements around collecting, recording, using, and storing personal information will apply. Given the sensitivity of the information being collected, careful consideration will need to be given to ensure no unauthorised access to the information.   

We recommend if you need further information or have a specific question or concern, please contact the Office of the Privacy Commissioner, directly. They also have Privacy and Covid-19 information available.

Do not divulge employees’ vaccination status to the wider school community, e.g., staff meetings and/or reply all emails. 

Recruiting in the Covid-19 environment

We are recruiting now – Can we ask about an applicant’s “Covid-19 vaccination status and/or testing status” as part of a recruitment process/interview?

  • School employers must appoint only once verification and confirmation of full vaccination status is provided, as per the Covid-19 Public Health Order for Education.

We want to make an offer to a preferred candidate – what do we need to do?

  • Before making a verbal and/or written offer of employment, ensure you have obtained the appropriate verification of a candidate’s vaccination and/or testing status.

What is acceptable confirmation of Covid vaccination/testing status?

The best way for an employee to obtain up to date and verified evidence of their vaccination status is from the Ministry of Health through either My Covid Record, or by way of a letter: 

  • My Covid Record – an individual can quickly obtain evidence of their status here, or through their NZ COVID Tracer app (users navigate to the Dashboard and then click on More info; My Covid Record will be one of the options listed). They will need to set up an account for this or link their record to their RealMe login. 
  • Letter - If an employee cannot verify by way of My Covid Record, they can request a letter from the Ministry of Health confirming their vaccinations status. It can take up to 10 days for a request to be processed. 
    • The information around a person’s vaccination status and why they received an exemption needs to be protected in line with the Privacy Act 2020. 

However, consistent with the school’s policy and the Health and Safety at Work Act 2015, the school can undertake a secondary risk assessment and determine an appropriate response to ensure that the health of any employee (or akonga/student) who is unable to be vaccinated, and those they come into contact with, is maintained.   

What recruitment documentation do we need to update to reflect the new Covid-19 requirements?

  • Recruitment policies and process documents 
  • Vacancy application forms
  • Interview questionnaires
  • Vacancy advertising wording
  • Letters of Offer for Employment 

Policies and procedures or processes:

If you haven’t already, now is a good time to review any Board policy that could relate to the COVID-19 pandemic. These would include, but may not be limited to, the Board’s Health and Safety Policy, personnel policies, the school’s pandemic plan and any policies relating to vaccination. It’s possible that some of the details are captured more in school procedure, in which case they will likely sit with the principal to implement under policy direction. 

When reviewing Board policy, your Board should ensure any expectations and delegations to the principal are clear to help them perform their job accordingly. A policy that sets clear expectations while allowing the principal flexibility to implement requirements as best fits the school is best suited in the fast-changing COVID-19 environment. 

Application forms suggested wording:

‘You will be aware of the vaccination and testing orders around the Government’s decisions that the requirement for the education workforce is to be vaccinated, and in many cases, tested. As of 1 January 2022, all staff who may have contact with students will legally be required to be vaccinated and this will be a condition of employment. You will need to disclose anything that may impair your ability to accept and fulfil all of these conditions of employment’.

Vacancy advertising wording suggested wording:

  • “Applicants need to be able to confirm and verify their current Covid-19 vaccination (and/or testing) status if shortlisted for interview”
  • “If you are shortlisted for an interview, please bring with you confirmation of your current vaccination status”.
  • “Applicants will be required to meet the Covid-19 Public Health Orders as they apply to the education sector”.
  • [insert school name] is committed to the health, safety and wellbeing of all staff and are proactively taking all necessary and required measures to protect our staff and akonga from Covid-19”.

Suggested Interview questions:

You can only ask an applicant if they are Covid-19 vaccinated, if the role they’re applying for has to be carried out by a vaccinated person, for example for health and safety reasons. That decision has been made by the Government through the Public Health Orders 2021 (including subsequent amendments). All education sector workers will be required to be fully immunised against Covid-19, so you can ask more direct questions in interviews that what you may usually be able to:

  • Are you aware of the (Public Health Order) PHO around the Government’s decisions that the education workforce needs vaccinating largely due to the vulnerability of students? 
  • What is your current vaccination status? (Insert additional note, providing references to Privacy Act requirements i.e., outline school’s privacy policy/storage/use/retention & disposal procedures)
  • Is there anything you wish to disclose that may impact your ability to accept and fulfil the conditions of the job in terms of the health and safety of the school and as it relates to the Covid-19 requirements in general?
  • Are you prepared to provide proof of your vaccination status?
  • If you have had the first vaccination and are waiting on getting the second – when is this booked for and are you willing to undertake weekly Covid testing and providing the school with the results until such time as you are considered fully vaccinated (2 full weeks after 2nd dose)
  • Is there anything you wish to disclose that may impair your ability to accept and fulfil the conditions of the job in terms of the health and safety of the school in general?

*Please note be careful to avoid any suggestion you will discriminate against someone who has an exemption.

Insertion into Letters of Offer for Employment - Mandatory Vaccination Status 

Insert the following wording into all new Letters of Offer for Employment

As you may be aware that under the Public Health Order 2021 (including all subsequent Amendments), you will be required to have had both doses of the COVID-19 vaccine by 1 January 2022. This offer is made on the basis that you will be able to produce legitimate confirmation of your vaccination status to the Board, prior to the commencement date of your employment. This offer of employment is conditional until such time as that occurs. Please also note that in accordance with the Covid-19 Public Health Order 2021, you are required to notify the Board immediately, with any future changes to your vaccination status”. 

Letters of Offer of Employment

All schools must have in their records for each employee a letter of employment, a job description and for non-union members an Individual Employment Agreement (IEA)

Templates for permanent offers of employment:

What employment documentation is needed to be kept on file for a new employee?

  • A copy of the Letter of Offer for Employment- Which will include the wording “As you may be aware that under the Public Health Order 2021 you will be required to have had both doses of the COVID-19 vaccine by 1 January 2022. This offer is made on the basis that you will be able to produce legitimate confirmation of your vaccination status to the Board, prior to the commencement date of your employment. This offer of employment is conditional until such time as that occurs.”
  • If they are not a member of the union, a copy of the Individual Employment Agreement including the attachment “Resolving Employment Relationship Problems”
  • Vaccination and/or testing status verification/certificates
  • A copy of their CV
  • [if applicable] Verification of Teacher Registration 
  • For further guidance, check out our Personal files and record keeping webpage

Managing leave related to Covid-19 Public Health Orders (PHO)

There is no one answer for all your situations and the MoE information at this point leaves the decision of unpaid or paid leave for Boards to make. Principals and Boards will need to address all employment matters on a case-by-case basis. 

This includes dealing with employees that are vaccination hesitant with an open mind and enquiring about their reasons that are preventing them from being vaccinated before making any decisions on paid or unpaid leave. 

Dependent on the circumstances, if an employee refuses to comply with their duty to get vaccinated, a school can decide if it is reasonable to place the employee on unpaid leave.

Should an employee show hesitancy but not refusal, a Board could provide paid leave for the employee to seek further advice from their medical professional. However, Boards should be mindful that it would be unreasonable to continue paid leave beyond a reasonable period for the employee to seek further advice.

Obligations on employees as individuals

When it comes to individual school employees, they are best to refer to clause 7 (Duty of affected person to be vaccinated in order to work) of the Vaccination Order. 

This clause states they, as “an affected person must not carry out certain work unless they are vaccinated”. Vaccinated is defined (by clause 4 of the Order) as having received both vaccinations doses. 

If applied to the education sector straight away, clause 7 would have required employees to already have received both doses of the vaccine. 

To give time to school employees who were not already fully vaccinated to be fully vaccinated while still being able to work, the Vaccination Order contains a second delay.

This delay, as found in Schedule 1, Part 3 of the Order, clause 7, is the well-publicised requirement that employers give employees until 15 November 2021 to have their first dose of the COVID-19 vaccine, and their second vaccine no later than 1 January 2022.

In essence, the definition of vaccinated is different for school employees until 15 November 2021, and then again until 1 January 2022. However, the obligation remains on employees to continue to meet the definition as an “affected person” under clause 7 of the Vaccination Order.  

My school is currently in a surplus staffing situation (due to roll drop)- how does the Vaccination Order interact with the surplus staffing process?

  • Schools are still obligated to follow the same applicable Collective Agreement provisions set out in the respective Collective Agreements. 
  • So, the requirement to go through a needs analysis for teaching staff still applies. 
  • If the needs analysis has determined that a teacher who refuses to be vaccinated is going to be surplus, please advise the employee that they should still get vaccinated to avoid any potential issues with accessing the employment protections afforded by the respective Collective Agreement.
  • However, the general guidance is that the Collective Agreement provisions continue to apply. 
  • In the situation outlined above, it is prudent to seek advice from NZSTA. 

What information needs to be recorded?

You must ask all employees to provide you with evidence of their vaccination status. Schools are obligated to record the following information for the employees, workers, and other volunteers engaged onsite:

  1. person’s full name
  2. date of birth
  3. a telephone number and email address by which the person may be contacted
  4. whether the person is vaccinated
  5. if the person is vaccinated:
    1. the name of the COVID-19 vaccine or vaccines they have received; and
    2. the date or dates on which they received a dose of the vaccine or vaccines
  6. if the person has received one dose of the vaccine, but not two doses of the vaccine, the latest date by which they must have the second dose of a COVID-19 vaccine to be fully vaccinated (1st of January 2021) 
  7. if the person is not vaccinated with any dose of the vaccine, the latest dates by which they must have their first and second doses of a COVID-19 vaccine to be vaccinated (i.e., 15 November 2021 and 1 January 2022)
  8. if the person has an exemption from being vaccinated, which is very rare:

(i) confirmation of that fact; and

(ii) a copy of the exemption or authorisation (i.e., a letter from a doctor stating that the employee cannot or should not be vaccinated on medical grounds).

What privacy obligations apply to the Vaccination Order?

  • Boards must store information about employees’ vaccination status securely
  • Do not divulge employees’ vaccination status to the wider school community, or to other staff members who do not have a legitimate reason to access this information (i.e., because they are the ones recording the information into the register on behalf of the board as the PCBU.
  • Boards may accept any proof of vaccination which provides assurance that an employee is fully vaccinated. Ideally, this will be an entry on the My COVID Record website, but it could also be an email, immunisation card, or SMS that the staff member has received from their vaccine or medical provider, or the BookMyVaccine website. 
  • It’s important to note that the Vaccination Order overrides any Privacy Act right to not provide medical information, but the requirement to properly record and store information remains. 

COVID-19 Vaccination order (archived)

In your communications, please advise anyone providing services on site, be they staff, contractors, volunteers and other people engaged for onsite work) that to be permitted to work onsite, they will be legally required to: 

 1. Have a first dose of the COVID-19 vaccine by the end of the day on 15 November 2021 

2. Be fully vaccinated by 1 January 2022. 

Interaction between the Vaccination Order and the Public Health Order released last week about mandatory testing at schools in Alert Level 3:

Please note: the following paragraph only applies to schools in Alert level 3: 

If you are at a Level 3 school, you need to make sure that all employees (regardless of vaccination status) who work onsite present you with a negative COVID-19 test before returning to their duties. 

You must also ensure that any employee who is not yet double vaccinated presents you with weekly COVID-19 test results. 

We recommend the following 3 step process:

Step 1: Provide information

Between now and 15 November, boards and principals should:

  • Advise all staff in writing about the Vaccination Order and encourage staff to get vaccinated
  • Reiterate this advice in staff meetings and kanohi ki te kanohi discussions, noting that you can only encourage staff to get vaccinated; you must not direct them. You can also explain the consequences that not getting vaccinated may have. Please take care not to be intrusive such as asking for a show of hands at a meeting or sending group emails.
  • If you are making changes to school policies because of the Vaccination Order, you must involve staff and unions in this process and seek confidential feedback on any proposed change
  • Support and encourage staff to get vaccinated. This includes allowing them to get vaccinated during work hours. 

Now is the time to actively communicate with staff who are not yet vaccinated. Boards should:

  • Support staff to get vaccinated
  • Have a plan in place to ensure the school always has sufficient staff to supervise and teach students
  • Be aware that any staff absence to get vaccinated during work hours should not be recorded as leave

Vaccinations can be an emotive topic for staff and employers. Please model kindness and understanding in your discussions with staff and encourage them to seek medical advice from trusted sources, e.g., their GP or the Ministry of Health’s website.

Step 2: Gather information

Between now and 15 November, boards and principals must: 

  • Ask employees, workers and anyone engaged on site to provide evidence of their vaccination status
  • Anyone who refuses to provide this information must be recorded as ‘unvaccinated’; noting this can be changed/updated
  • Evidence of vaccination must be recorded and stored securely. It’s important to note that the Vaccination Order overrides any Privacy Act right to not provide medical information, but the requirement to properly record and store information remains. 
  • Secondary Schools must have a vaccine register in place by 9 November 2021.

What happens if a staff member refuses to provide proof of vaccination?

If a staff member refuses to provide proof of vaccination, as their employer you must assume that they are unvaccinated for Covid-19, and you should advise them of this assumption and act in accordance with this. 

For unvaccinated employees or those who refuse to disclose their vaccination status, please follow the process outlined in Step 3.

Employees (and others) are obligated to provide you with the necessary information so the board can meet its requirements as the employer of all school staff. Staff are also obligated to advise the board of any changes to their vaccination status.  

Step 3: Initiating an employment process (before the 15 November deadline)

If, despite your attempts to proactively implement the Vaccination Order, you encounter resistance or refusal from anyone onsite to comply with the Order, boards and principals can:

  1. In writing, advise the employee, who is supposed to work onsite and who has not been vaccinated, that they have not yet provided the school with proof of their first COVID-19 vaccination. Despite the PHO requirement to supply evidence around vaccination by 15 November, as at 16 November it remains unclear how work will be performed, both on and off site, beyond that, but updates will be provided as made available.

It is also prudent to invite the employee to a meeting to discuss the matter and advise the employee of their right to bring a representative to this hui. 

Remember to document all meetings and communications about this issue.

  1. At the meeting, advise the employee again of the employer’s obligation to ensure that all employees providing services onsite at the school have had their first COVID-19 vaccination by the end of the day on 15 November 2021.

    Boards should also:
    1. Query the reasons for the employee’s refusal to get the COVID-19 vaccine and encourage the employee to seek medical advice 
    2. Reiterate that the Board will have no choice but to exclude the employee from school and may commence a formal employment process, which could impact their future employment status if the employee does not meet the 15 November deadline.

An employment process must include active communication with the employee (or the employee’s representative). This may be via meetings, letters, emails etc. 

An employer must also seek and genuinely consider the employee’s response to the situation and investigate whether any alternatives (including redeployment or remote work) may be available. 

Please also continue to encourage the employee to get fully vaccinated before 1 January 2021.  

If this is successful and the employee decides to get a dose of the vaccine after 15 November, the employee will be permitted to be back onsite and working from the time they have had this first vaccination. Of course, the employee will still be under an obligation to have the second dose of the vaccine by 1 January 2022. 

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© 2018 New Zealand School Trustees Association