COVID-19 Vaccine Mandates continue to fall away

Fonterra has discarded its strict vaccine policy and is instead allowing unvaccinated staff to take daily rapid antigen tests.

Introduction:

Earlier this month, we discussed the recent High Court decision overturning the Police and Defence Force vaccination mandates. Vaccination requirements are now being softened in the private sector also.

Fonterra’s COVID-19 vaccination mandate for all employees was to come into effect on 1 April 2022. The mandate was proposed following a risk assessment completed in December 2021. However, now that more information surrounding Omicron has been released and rapid antigen tests are readily available, Fonterra has altered its approach to the pandemic.

Fonterra noted that this decision was made in light of the high rates of vaccination across its workforce consisting of over 10,000 employees and contractors nationwide. Fonterra officials shared that, after a great deal of consideration and consultation, a daily testing programme is the most reasonable response during this phase of the pandemic. However, if another variant were to appear it would reassess this approach in accordance with Ministry of Health guidelines.

Fonterra has taken the view that having a staff member provide a daily negative rapid antigen test before attending work in person each day is a reasonable alternative to terminating employment. Fonterra’s vaccination rates align with New Zealand’s high vaccination rates. Given the current widespread nature of Omicron, this is the most appropriate approach Fonterra has found as a way to maintain their current workforce.

Termination as a last resort

Employers have a duty to genuinely consider all alternatives before terminating employment. Employers may find themselves on the receiving end of a personal grievance for unjustifiable dismissal if the decision to terminate appears to be pre-determined or alternatives to dismissal are not adequately explored. Fonterra has demonstrated genuine consideration of staff feedback and adjusted its COVID-19 policy in light of this and the current Omicron outbreak.

Are most vaccine mandates likely invalid now?

No. The decision to move away from strict vaccine requirements by some businesses does not affect the validity of other mandates. The reasonableness of each mandate must be assessed with regard to the specific role it covers. However, many COVID-19 vaccine mandates were implemented in late 2021. With Omicron now infecting both vaccinated and unvaccinated members of the community at an alarming rate, employers may wish to reassess the suitability of their COVID-19 health and safety policies.

Conclusion:

Delta is no longer the dominant variant of COVID-19 and testing is accessible for almost everyone. Given these recent updates, it may now be less reasonable for employers to continue to mandate vaccination. Recent cases and new approaches to the vaccine mandates serve as an important prompt for employers to review the suitability of their risk assessments.

Employers who want expert advice on how to navigate vaccination mandates and risk assessments during these rapidly changing times should contact, Jaesen, Ruth, Jordan or Caylee.