Requiring proof of a positive Rapid Antigen Test
Currently, those who test positive for COVID-19 are required to isolate for at least 7 days while they recover from COVID-19. For some burnt-out employees, this may present an opportunity for a break, despite not actually testing positive for COVID-19. How should employers deal with this?
The employee and employer have an obligation to deal with each other in good faith. In an ideal world, the short answer is that this should not happen.
Nevertheless, most Individual Employment Agreements will include a clause whereby an employee is required to provide proof of their illness or a medical certificate at their own cost if they have been sick for three or more calendar days. Therefore, after three calendar days, the employee would be required to provide evidence of a positive Rapid Antigen Test or a medical certificate stating that they have COVID-19. If no evidence has been provided and the employer has reason to believe that perhaps the employee is not being honest about having COVID-19, they can simply request evidence or a medical certificate in accordance with the employee's Individual Employment Agreement.
If you suspect your employee is using a fake RAT test, for example by borrowing a positive result from a friend or purchasing positive tests off Facebook marketplace, you can require them to provide a medical certificate, but you should be certain that the employee is in fact faking their test, and again, we recommend seeking legal advice before requesting this from your employee.
In circumstances where the employer does not want to wait the three calendar days, the employer can rely on section 68(1A) of the Holidays Act 2003. This section provides that “the employer may require proof of sickness or injury within 3 consecutive calendar days if the employer—
(a) informs the employee as early as possible that the proof is required; and
(b) agrees to meet the employee’s reasonable expenses in obtaining the proof.”
Proof may include evidence of the Rapid Antigen Test or a medical certificate. If the employee is found to have been dishonest about having COVID-19, then this may make the employee liable for dismissal because it is viewed as behaviour that fundamentally compromises the employer’s trust and confidence in the employee, which may constitute serious misconduct.
We recommend seeking legal advice if you are unsure of your rights and obligations as an employer in these circumstances, and to ensure that correct processes are followed when dealing with these matters.
CVC requirements
In addition to all these issues employers are having to navigate, the Government has recently advised that as of 11:59 pm on 4 April 2022, there are no requirements to use My Vaccine Pass, though businesses will still be able to use the system if they would like to. This creates pressure on CVC (COVID-19 vaccination certificate) compliant businesses to decide whether they want to continue to require vaccination passes.
At this stage, it appears that businesses can still require customers and suppliers to show their vaccine certificates before entering their premises, but this is a rapidly changing area. Further, as well as weighing up health and safety protections for staff versus shutting customers out, there are the added headaches of how to deal with vaccinated vs not boosted people or foreign visitors who were vaccinated overseas, but do not have a New Zealand vaccine pass. There is not yet clear advice on what to do here, but we will update you as announcements and updates are made.
Unvaccinated Employees
While most public sector vaccine mandates are being lifted, some are still remaining for high-risk industries, such as border workers. In addition, the current guidance is that the private sector can still require staff to be vaccinated, there are a number of caveats to this, however. Businesses still must complete risk assessments and show there is a health and safety argument for any mandate.
It is our opinion that the health and safety argument will continue to get weaker over time as Omicron spreads more in the community. Additionally, this is not simply a black and white decision, every business will be different, and decisions must be made on a case by case basis. Again, your best protection against unnecessary legal liabilities here is to seek legal advice on your specific situation.
Until amendments to the COVID-19 Public Health Response (Protection Framework) Order, 2021 are made setting out these changes, there will still be some uncertainty for businesses in how these changes will work in practice. This is a rapidly developing area, and we will do our best to keep you updated on any changes. If you want advice on your rights or obligations as they relate to these changes, please contact the Employment and Commercial team at Godfreys Law today.
Prev Article