COVID-19 Level 3 advice and FAQ for the mandatory vaccine Public Health Orders

The Government is to issue Public Health Orders around mandated testing and mandated vaccination. At the moment the public information released by the Minister of Education on 11 October and the PHO (testing) issued 15th October provide the basis for the following information. The PHO (vaccination) is expected before Monday 26 October. The information will be updated when that order is released and may change.

Mandate Map

A Public Health Order is expected to require boards to ensure that only fully vaccinated staff are engaged in on-site duties from the start of next year:

  • First vaccination by 15 November 2021
  • Fully vaccinated effective from 1 January 2022

Fully vaccinated under this order means having received the second vaccination.

Teachers will need to provide proof of vaccination, the Ministry of Education have provided more information on how to obtain a letter of confirmation of vaccination:

Requesting proof of vaccination
Proof of vaccination form

There are additional requirements indicated for employers in COVID-19 Level 3 areas:

  • Employers will be required to have evidence all staff of a negative COVID-19 test taken no more than 5 days prior to returning to the site regardless of their vaccine status.
  • Schools and kura cannot reopen until they deem they have sufficient staff who have tested negative to be able to safely do so.
  • Face coverings are mandatory.
  • Employers must have evidence of weekly negative COVID-19 tests after you return to school until you are fully vaccinated.
  • Employers cannot use staff who are not fully vaccinated by 1 January 2022 for on-site duties.
  • Schools in the Auckland area are expected to have a delayed start to the term and begin with teaching online.

Implications for members in schools or kura in COVID-19 Level 3

  • Whether fully vaccinated or not, you will have to have had a negative result for a COVID-19 test taken within 5 days before returning to school. This applies to all those working on-site including regular teachers and relief teachers.
  • You will have to stay home and provide distance learning to students until sufficient numbers of teachers and support staff have received a negative test result for the school to re-open safety.
  • You must provide evidence of the negative COVID-19 test to the principal before you can be onsite.
  • If you are not fully vaccinated you will need to repeat the test weekly and provide evidence to the employer that the test results are negative.
  • If you are fully vaccinated you will not need to repeat the initial test (unless you experience cold or flu-like symptoms or are otherwise required to because of association with infected individuals as per the public health requirements).
  • You are expected to get the vaccination and tests in your own time, but if that is not possible the employer is to provide you with paid leave during the day for it.
  • You will have to wear a face covering.
  • There are potential implications for your ongoing employment if you refuse to be COVID-19 tested, wear a mask or be vaccinated.
  • There is a potential fine of $1,000 for breaching the order and being onsite without evidence of a negative test. 
  • There are some exemptions indicated for those who cannot wear a face covering, take a COVID-19 test or be vaccinated for medical reasons.
  • Current requirements would be that if the employer cannot use you for on-site duties you would discuss with them whether there are alternatives such as online teaching. Where alternative duties are not practical different types of leave are an option, depending on your individual circumstances. Your PPTA field officer will provide advice in these circumstances.
  • If alternative duties or ongoing leave are not practical options, then the employer may begin processes that could result in your position being terminated. Your PPTA field officer will provide advice in these circumstances.

Is this legal?

Section 9 of the COVID-19 Public Health Response Act 2020 authorises the responsible Minister (currently Hon Chris Hipkins) to make a COVID-19 Order for mandatory testing and vaccination of employee groups. 

The Act requires a robust process to be followed including an analysis of whether the requirement is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act.

The process for making an order under this Act has been tested in a case concerning the order in force for mandatory vaccination of “border workers”:

GF v Minister of COVID-19 Response [2021] NZHC 2526 24 September 2021

The judge found that all the requirements in the Act had been met. Evidence was presented that there was a strong public health rationale for the order in relation to the specific group. This type of evidence will be used to justify the order under the Act being made for teachers. 

Is this a breach of the Privacy Act/Bill of Rights not to be vaccinated?

The COVID-19 Public Health Response Act 2020 allows exemptions in respect of broader public health concerns.

It is indicated that the orders will also provide an over-ruling authority for the employer to require evidence of your vaccination status. 

There is also the point that the mandate does not require you to be vaccinated but puts a requirement on your employing board to ensure that to continue to be allowed on-site you must be fully vaccinated by 1 January 2022. To do this you must have had your first vaccination by 15 November.  

The restriction on employment is similar to the one that prevents a board from employing teachers who do not choose to renew their certification. 

What happens if I am not vaccinated?

After 1 January 2022 the employer cannot continue to have you on-site.

What if I cannot be vaccinated for medical reasons?

If you are unable to be vaccinated for medical reasons and have medical certificates to support this then you should be given alternative duties that can be managed without risk of transmission (including possibly online teaching) or be placed on disregarded, paid sick leave. Medical retirement may be an option in some circumstances.

What if my personal choice is not to be vaccinated?

You continue to have that choice.

You must provide evidence of a negative COVID-19 test result before you can return to school.

You must provide ongoing weekly evidence of further negative testing until you are fully vaccinated.

All members who work in schools and kura will be required to have a first dose of the COVID-19 vaccine by 15 November 2021 to be fully vaccinated by 1 January 2022.

If you are not fully vaccinated by 1 January 2022 your employer cannot allow you on-site. It is not currently clear what is expected if you cannot get your first vaccination by 15 November.

If you cannot work on-site, your employer might terminate your employment. If this did occur, the surplus staffing provisions would not apply. In such a case, your PPTA field officer would support you to ensure a fair and just process is followed.

What happens if I don’t tell the employer if I am vaccinated?

Under the Public Health Order, you would need to reveal your vaccination status, but the employer must keep this confidential.

The Public Health Order overrides the Privacy Act.

If you refuse to provide your status your employer must assume that you are unvaccinated. The indication is that the employer will be able to request your vaccination status from the Ministry of Health.

What if I cannot be tested for COVID-19 for medical reasons?

If you are unable to be tested for COVID-19 for medical reasons and have medical certificates to support this then the current indication is that you can get alternative evidence from your medical practitioner that you have been assessed in the last five days and show no signs of COVID-19-related symptoms.

Can I be expected to be on-site if I have not received my test result but my employer says I should attend?

No. The employer must sight the evidence before you can be on site. It would be a breach of the PHO by you, if you attended, and by the employer if they allowed you on site.

What if it is my personal choice not to be tested for COVID-19?

You continue to have that choice.

If you choose not to be tested for COVID-19, then the employer cannot allow you onto the school site. You may be able to agree to alternative duties e.g. online teaching, or the employer may agree to provide either paid or unpaid leave or a combination, at their discretion.  They may also decide to initiate termination of employment processes.

In such circumstances, the surplus staffing provisions would not apply. Your PPTA field officer would support you in ensuring a fair and just process was followed.

What if I cannot wear a face covering for medical reasons?

If you are unable to wear a face-covering for medical reasons and have medical certificates to support this, then you will need to agree with the employer what additional hygiene precautions might be acceptable in terms of the public health requirements.

You might be able to teach online, face shields may be appropriate, additional distancing and disinfection may be discussed etc. If these are not practical then the employer should give you paid leave, not sick leave.  

What if it is my personal choice not to wear a face-covering while it is mandated?

You continue to have that choice.

If you choose not to wear a face-covering in circumstances when the Public Health Order requires it then the employer cannot allow you onto the school site. You may be able to agree to alternative duties e.g. online teaching, or the employer may agree to provide either paid or unpaid leave or a combination, at their discretion. If this is not practical, then the employer may initiate processes that could lead to termination of your employment.

In such circumstances, the surplus staffing provisions would not apply. Your PPTA field officer would support you in ensuring a fair and just process was followed.

Would I have priority for surplus staffing options if I don’t want to be vaccinated?

Where a school is undergoing staffing reduction through the normal surplus staffing process this year, vaccination status would not be a consideration in the CAPNA process, but it may influence employer decisions at the voluntary options stage. 

Unvaccinated staff in schools that have surplus staffing processes running this year, and who had their positions disestablished by voluntary option or CAPNA, would have access to the appropriate surplus staffing options.

What can PPTA do to support me if I don’t want to be vaccinated?

PPTA cannot overturn the Public Health Order.

PPTA field officers will work with affected members to ensure the best outcomes possible are achieved under each individual set of circumstances and that all appropriate processes are followed fairly and consistently.

What is PPTA’s position on mandated vaccination?

From the onset of the pandemic, PPTA’s policy has been to support decisions of the Ministry of Health, which are based on scientific evidence and a robust legal framework. Executive believes that this policy provides maximum protection for all of our members and for their students and communities.

Mandated vaccination to perform face-to-face teaching duties, as required by the Ministry of Health, falls into this policy.

PPTA recognises the right of individuals to choose not to be vaccinated but acknowledges that under the vaccine mandate this will require corresponding compromises to be made in their employment to provide maximum protection for all members.

PPTA advice is for all members to be fully vaccinated, but the Association will continue to support individual members who choose not to be by ensuring fair and just processes apply.

 

Vaccine Science Webinars

The vaccine science webinars with Dr Michelle Dickenson will be a great opportunity for those who have additional vaccination questions and to debunk and myths surround the vaccine.

Thursday 21 and Friday 22 October at 4 pm.

Webinars hosted by Dr Michelle Dickinson will focus on vaccine science. This will allow members to get answers to your vaccine questions from a reliable source.   

The webinars will be open to all teachers and other education workers who register from today. Please register your interest here.  

You should submit questions in advance of the webinars as part of the registration process. Questions will be answered as part of the webinar, which will be 45-60 minutes. A live Q&A will also be possible. 

Additional webinars will be offered if there is ongoing interest. 

Last modified on Friday, 22 October 2021 11:47