Unvaccinated employees will now be handed a rapid antigen test rather than a dismissal letter
Fonterra is abandoning its hardline vaccine policy, opting for daily rapid antigen testing in a move employment law experts call “pragmatic”.
The dairy giant was due to enforce a strict mandate on April 1, 2022, requiring all employees and contractors to be fully vaccinated.
But in an email note sent out to staff this week, chief executive Miles Hurrell says the company is changing tack.
“We’ve taken on board the latest health advice, have more information about rapid antigen tests, and a better understanding of the risks Omicron poses,” he writes.
“This means that while Omicron is the dominant variant, we are adapting our approach to those employees who choose to remain unvaccinated.”
The company will now require unvaccinated staff to provide a negative rapid antigen test before entering the workplace to start work each day, as a “reasonable alternative to termination of employment”.
The emergence of new variants and new information is likely to trigger further reviews of the company’s vaccine requirements, which could mean new measures for those employees who choose to remain unvaccinated.
“We currently consider participating in a daily testing programme to be reasonable during this phase of the pandemic,” Hurrell says.
Fonterra’s rejig follows the High Court throwing out a mandate for Police and Defence Force staff, raising questions about businesses who had vaccination policies.
Businesses should review risk assessments
Alastair Espie, employment lawyer and senior associate at Duncan Cotterill, says the policy change reflects the rapidly evolving nature of the pandemic and changing situations employers have to respond to.
Many employers were drawing up their vaccine policies last year, when Delta was the dominant variant of Covid-19 and rapid antigen tests weren’t readily available.
“It reflects to some degree that Omicron is a different beast to Delta. It also reflects that there are more tools available to employers, particularly through the availability of rapid antigen tests,” he says.
Espies predicts some employers may move quickly to adjust their policies, while others might be more likely to wait for the peak of the Omicron outbreak to pass before easing vaccine policies.
“While we may be moving into a phase where vaccine mandates are perhaps not as necessary as they may have been in the past, that's not going to necessarily mean that past decisions automatically become unjustified, unlawful, or ripe for challenge.” Alastair Espie, employment lawyer
Whether taking prompt action or cautious steps, Espie says employers need to monitor and update the risk assessments that underpin their vaccine mandates.
He says this could look like asking themselves whether circumstances have changed and whether there are new tools that might be available to reduce the risk to their workforces.
“Is the risk assessment still relevant or have things changed sufficiently? Or do we think because we now have rapid antigen tests widely available, that our overall risk rating is different to what it was weeks or months ago?”
From a legal standpoint, Espie is reminding employers that decisions they make regarding a dismissal or requiring employees to stay away from the workplace will be assessed within the context of employment law in place at the time.
“While we may be moving into a phase where vaccine mandates are perhaps not as necessary as they may have been in the past, that's not going to necessarily mean that past decisions automatically become unjustified, unlawful, or ripe for challenge,” he says.
Paul McKay, employment relations manager at BusinessNZ, sees such changes as appropriate and pragmatic.
“Any time you make a decision based on facts at a particular time, you've got to keep reviewing the fact that those conditions may have changed, and therefore your decision may no longer have a sensible basis,” he says.
The mandates were put in place when Delta posed an extreme risk to workers, he says, so it's sensible to make changes.
“It’s a recognition of the widespread nature of Omicron and the need to keep a workforce going. It’s saying, ‘The only thing I need to know is that you aren’t infected’. It's a shifting of the ground rather than a removal.”
