My Vaccine Pass changes

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Face masks

Gatherings, events and hospitality

Do the seated and separated rules for events serving food and drink, and food and drink businesses, still apply at Red?

Seated and separated/food and drink rules still apply at Red, but only to indoor premises. This means: • that if your activity is outdoors, you don’t have to be seated and separated to consume food and drink. • you can go up to order drinks at outdoors on-licenses, rather than be served via table service. • if you’re in a venue operating both indoor and outdoor spaces, you consume food and drink wherever you like within the outdoor space of the venue.

What are the seated and separated rules at red for outdoor events serving food and drink and outdoor food and drink businesses?

Restrictions on food and beverage service outdoors have been loosened: • there are no capacity limits • there are no seating requirements • there are no facemask requirements • entry is vaccine pass required and workers must be vaccinated up until 11.59pm 4 April

Under the new Covid Protection Framework, there are different rules depending on whether venues are classed as indoors or outdoors. What’s the difference?

An indoor venue is one which is enclosed by ceilings and walls (or similar) and otherwise has a limited flow of fresh air. These could include gyms, nightclubs, restaurants and halls. Under the Red traffic light setting, these venues have a capacity limit of 200 people, and facemasks are generally required.

An outdoor venue has good ventilation, with plenty of free-flowing, fresh air coming into the space. The space has no roof, fewer than four walls, or walls that do not go all the way up and allow a significant amount of air flow. Under all traffic light settings (including Red), these venues have no capacity limit or facemask requirements.

What happens if my venue is both indoors and outdoors?

Some venues are made up of indoor and outdoor spaces. The activity that occurs in these indoor spaces should determine what capacity limit applies – the rule follows the activity. This means that: • Retail capacity limits (capacity based on 1m distancing) generally apply to the indoor places in which people: o travel directly through to get to an outdoor space; and/or o need to enter so they can purchase things (for example food, to eat when back outdoors); and/or o need to go to use the bathroom. • Indoor capacity limits (of up to 200 people based on 1m distancing) generally apply to indoor spaces if people are using the space for purposes other than those listed directly above. For example, if there is entertainment or dining occurring indoors • You can still manage different spaces under the ‘defined spaces’ rule, with capacity limits applying to each defined space.

Is my venue indoors or outdoors?

• Definition of indoors: Indoor spaces are generally considered to be venues that are enclosed by a ceiling and walls, or other similar structures, and which don’t have much, if any, flow of fresh air. Examples include many gyms, nightclubs, restaurants, and halls. • Definition of outdoors: Outdoor spaces are generally considered to be places that have good ventilation, with a decent amount of free flowing, fresh air coming into the space. For example, this could be because the venue does not have a roof, has less than four walls, or because its walls don’t go all the way up and still allow a significant amount of air flow.

Vaccine mandate changes

What is happening?

At 11:59pm, 4 April, vaccine mandates will be removed for all sectors except health and disability workers (which includes aged care workers), prison staff, and border workers. They remain for these people because health and care workers and prison staff come into contact with a lot of people who are at high risk of serious illness from COVID-19, and for our border workers because they are the first people that would likely be exposed to any new variant of concern that emerges internationally.

Why is this happening?

We are seeing case numbers start to decline, and it’s the right time to review the restrictions we have in place. A number of the tools that we developed to fight COVID-19 were designed to protect an unvaccinated population from earlier variants of the virus.

Vaccine mandates remain for these people because health and care workers and prison staff come into contact with a lot of people who are at high risk of serious illness from COVID-19, and for our border workers because they are the first people that would likely be exposed to any new variant of concern that emerges internationally.

Are there grounds for vaccination mandates in the workplace?

The latest public health advice is that the public health justification for requiring vaccination is stronger when the risks of contracting and transmitting COVID-19 in the workplace is higher than it is in the community. Employers may still be able to maintain vaccination requirements, where these continue to be supported by a work health and safety risk assessment, but these circumstances are likely to be more limited than they have in the past.

My venue/organisation still wants to use vaccine mandates for our staff, can they do this?

Employers may still be able to maintain vaccination requirements. These requirements would need to be supported by a work health and safety risk assessment and the circumstances are likely to be more limited than they have in the past. It is recommended employers first consider what other steps they can take in their workplace to prevent the spread of COVID-19, before requiring vaccination. Vaccination (including boosters) is still strongly recommended as one of the key public health measures and does provide significant benefits. Other key public health measures include mask wearing, physical distancing and requiring workers to stay home when sick.

As an employer, what do I do if a third party requires my employees to be vaccinated in order to access their workplace?

There may be situations where a third party imposes a condition on its engagement with an employer, for example to only deal with the employer’s workers if they are vaccinated, or to only allow vaccinated workers onto its premises. This may arise where an employer’s workers provide services to a third party. As long as these vaccination conditions are not unlawful, or in breach of any agreements between the parties, the employer will need to ensure its workers are vaccinated to keep doing business with the third party. Where this situation applies, we recommend that employers engage with the third party to ensure that in imposing this requirement they have considered the public health advice and undertaken a work health and safety risk assessment. This means that an employer may need to consider which of its workers engage with the third party based on their vaccination status. An employer may also rearrange their business to ensure that its workers who are assigned to engage with the third party are vaccinated.

What should an employer do if a government vaccination mandate has applied to their workplaces and this no longer applies to them?

Employers should undertake or update a work health and safety risk assessment reflecting updated public health advice to determine what controls are appropriate in their workplaces. An employer could conclude that: • alternative controls are more appropriate than requiring vaccination to perform specified work • that there is a basis for an employer vaccination requirement. Employers must engage with employees in good faith through-out the process of reviewing a work health and safety risk assessment and must be clear what their transition process will be. Guidance on steps an employer needs to consider are published on www.employmentnz.govt.nz

I am on leave because of a requirement that I be vaccinated – can I start back at work?

There is no barrier to a worker returning to work if they are on leave because their work was covered by a government vaccination mandate or an employer vaccination requirement, which no longer applies. The terms of any leave arrangement should be reviewed to ensure it is followed. For situations that were covered by a government vaccination mandate, this will also depend on whether an employer chooses to maintain or implement an employer vaccination requirement, where this is supported by a work health and safety risk assessment.

I lost my job due to a previous requirement that I be vaccinated – can I get my job back?

If an employee either resigned or had their employment terminated when a government vaccination mandate or employer- vaccination requirement was in place, that decision still stands. A former employee does not have a right to automatic reinstatement to their former role or any other role with their former employer. However, for work where a requirement to be vaccinated, under either a government vaccination mandate or an employer vaccination requirement, is no longer in place, people who had lost their job can potentially be reemployed if there is a vacancy.

Do you think some workers previously terminated due to the mandates, will be reemployed?

In the current tight labour market, we expect that some employers may want workers to return. However, there is no requirement for an employer to offer a former employee their job back or for a former employee to do so.

What happens if an employer is in the process of terminating someone’s employment based on the previous mandates? Do they no longer have a case?

Where there is currently an employment process underway due to an employee not being vaccinated, it is recommended that the employer take a cautious approach and immediately pause that process. Public health advice on when a business could reasonably require vaccination to perform work has been updated. Employers should undertake an updated work health and safety risk assessment before making any decisions.

What should an employer do when hiring staff in the future?

Employers should be clear when hiring new staff whether vaccination requirements apply, either under a government vaccination mandate or employer-vaccination requirement, or if they might apply in the future – particularly if the employer is still considering this. Employers can ask whether a potential employee is vaccinated and can specify vaccination is required to commence employment, subject to some conditions. Guidance for employers around these conditions can be found at www.employment.govt.nz

Could voluntarily retaining vaccination requirements for workers create legal issues for employers/Persons Conducting a Business or Undertaking (PCBUs)?

MBIE and WorkSafe are currently preparing guidance on the recommended approach and this will be published shortly. Employers/persons in control of businesses or undertakings (PCBUs) may still be able to maintain vaccination requirements, where these continue to be supported by a work health and safety risk assessment, but these circumstances are likely to be more limited than they have in the past.

What is the justification for continuing to enable businesses to voluntarily use workforce vaccination requirements, if the health rationale for them has fallen away?

We are moving back to normal employment, and work health and safety laws applying (or continuing to apply). This means each business or service will undertake health and safety assessments, and/or consider their operational needs, and make a decision that is appropriate for their staff and customers. The usual consultation requirements will apply. MBIE and WorkSafe will provide updated guidance to support this, reflecting current public health advice from the Ministry of Health.

How many businesses do you expect to voluntarily use them? How many workers will this impact?

We have already seen many workplaces implement vaccine requirements in sectors where there was not a government mandate in place. We imagine that many of these businesses may continue with this policy in the short term and, as they review their risk assessments as public health guidance changes, may remove the policy when it is appropriate to do so for their workers and communities.

MBIE and WorkSafe will provide updated guidance to support this, reflecting current public health advice.

What do these changes mean for the education sector?

The vaccination mandate has been removed for the sector. Given the current context, including that their workforce is highly vaccinated, schools and early learning services will need to consider what work, if any, will continue to need to be undertaken by a vaccinated worker.