2022 will test the extent of employers' health and safety duties: Bell Gully special counsel

2022 is set to test “the extent of employers’ health and safety duties around COVID-19 issues,” Bell Gully special counsel Andrea Pazin predicts.

“We are on the cusp of a significant change in approach with Omicron in the community likely to lead to widespread transmission. There is also the prospect of other variants that may arise and present further challenges,” she explained to NZ Lawyer.

Pazin anticipates that home isolation will be a concern in the employment law space, particularly where employees cannot work remotely. Another potential issue arises from cases where employees may not have access to statutory sick leave because they are in isolation due to being a close contact or are caring for dependants also isolating, where neither they nor the dependants are sick.

“The current Leave Support Scheme is unlikely to be a complete answer,” she says. “There will also be issues around how employers react to staff isolating, payment arrangements, and ongoing work pressures.”

The pandemic and its resulting mandates are also expected to spur potential harassment in the workplace.

“There are likely to be cases arising relating to workers, employers or clients bullying or harassing employees relating to COVID-19 issues,” Pazin tells NZ Lawyer. “There may be disincentives that lead to people not getting tested, or pressuring others not to be tested, or to not follow the requirements.”

Constantly changing vaccine mandates have been an area of focus for her and the Bell Gully team of late.

“We’ve been advising employers ranging from start-ups, charities and schools through to large New Zealand-wide employers and multinational organisations on vaccination orders, health and safety risk assessments and employer vaccination mandates, including termination situations.  Most recently, we’ve been providing advice about booster requirements recently added to the vaccination orders,” Pazin shares. “One of the biggest challenges is how quickly the legislation and guidance changes, often with little or no warning. These are novel and dynamic issues that are continuing to evolve.”

Vaccination orders in New Zealand, she points out, have been issued with “very short notice and tight timeframes, and it is sometimes unclear or contains gaps.” As a result, employers can find it tricky to determine whether they are in compliance with government regulations – especially if they have limited resources and access to advice from specialists.

“2022 is going to see more cases testing the legality of employers’ actions across a range of situations, including employer responses to vaccination orders, and employer-imposed vaccination mandates, including resulting termination situations,” Pazin predicts.

She also expects the courts to clear up when employees are “ready, willing and able to work” – a clarification that will have implications on employers’ payment obligations across the various work circumstances birthed by COVID-19.

“Good faith is a real tool here that goes both ways, and it is critical from a legal perspective.  At its best, we are seeing some really constructive and productive discussions where employers and employees are able to have difficult conversations, share relevant information, engage on the issues and understand each other’s perspectives in an effort to try to work through the issues together,” Pazin says.