By EMA Employment Relations and Safety Manager Paul Jarvie
This article first appeared in The Post on 10 July, 2025.
This week, I presented to the Royal Commission of Inquiry into Covid-19, outlining the impacts on the business sector of the extended lockdowns and vaccine mandates.
In the EMA’s submission, we argued that from a business perspective, the restrictions on business operations during the lockdowns were too restrictive.
Public health measures and employment law are like oil and water. Currently, they just don’t mix.
I told the commission that businesses struggled to implement mandates while being bound by employment law processes.
The question was put to me during the inquiry as to what could be done about the impasse.
I suggested that a caveat could be created under unemployment law that allows for certain public health measures (such as vaccine mandates), under exceptional and clearly defined circumstances (such as pandemics).
But it’s truly a can of worms. You have employment law on one side, but running parallel to that is the Bill of Rights in which people have the right to say ‘yes’ or ‘no’ to treatment. And treatment includes injections.
Businesses that were mandated to have vaccines immediately faced legal issues. If someone doesn’t want to get vaccinated, what do you do with them?
The difficulty here is plain for all to see. Legal cases involving workers being fired for refusing to get vaccinated continue to rumble through the courts. Just days ago, a Qantas pilot won his case in the Employment Court, as a result of the company’s unwillingness to provide ‘leave without pay’ and the fact that he was let go after refusing to get the Covid-19 vaccine.
Having a caveat for exceptional health circumstances would at least give businesses some clarity around their roles and responsibilities. Obviously, there’s a lot of ground that needs to be covered before anything like this becomes a reality.
And, as I mentioned, the Bill of Rights would need to be taken into account. But so, too, would the Health and Safety at Work Act. Allowing a person to opt out of treatment, such as a vaccine, then return to the workplace is a safety hazard, which business have a responsibility to mitigate.
During the pandemic and its various lockdowns, the EMA worked with government to help businesses navigate the various Covid regimes in their efforts to get back to work. We provided numerous Covid related webinars and employment checklists as a means to find a way through unchartered territory.
We handled thousands of calls a month on the Covid mandates between 2020 and 2023, underlining the confusion and frustration that businesses faced.
Since that time, the number of Covid-related calls from businesses to our AdviceLine has reduced to a trickle.
However, those remaining calls relate to an issue that remains a persistent strain on businesses and causes serious employment law headaches.
These calls relate to the estimated 38% of infected people for whom the effects of Covid have lingered, based on recent overseas research.
Measuring the impact of Long Covid, as it has come to be known, on businesses and the wider community is not included in the relatively narrow terms of reference of the Royal Commission.
We find this difficult to understand given the continued social and workplace challenges.
Long Covid brings a host of debilitating symptoms, including brain fog, chronic fatigue, joint pain, and respiratory issues. For New Zealand, this translates to between 207,000 and 405,000 people potentially affected. The actual number of Covid infections in the workplace are unreported and, therefore, unknown.
For businesses, this creates a complex challenge. The workforce is already under strain, and managing employees who are on long-term leave due to Long Covid presents difficulties in productivity, team cohesion, and operational planning.
Unlike a typical illness where recovery follows a predictable trajectory, Long Covid remains uncertain. It’s not a condition in itself, but rather a syndrome or collection of known conditions which, when observed together, paint the picture of Long Covid.
Symptoms fluctuate, meaning employees may seem fit one day, but struggle the next. This inconsistency complicates business planning, as employers must juggle staffing levels while maintaining fairness to all employees. This could be experienced as absenteeism or presenteeism, which can have more profound effects within the workplace.
From an employer’s perspective, the legal framework in New Zealand provides clear guidelines.
The Human Rights Act prohibits discrimination based on medical conditions, meaning an employee suffering from Long Covid cannot be unfairly dismissed, demoted, or treated differently due to their illness.
However, this does not negate the strain businesses feel when a key team member is absent.
Unlike a broken leg, with a defined healing timeline, Long Covid’s uncertain recovery period leaves employers in limbo, struggling to balance compassion with the practical needs of running a business.
While Long Covid has not really been publicly acknowledged, or accepted, it remains a constant issue for employers and those individuals who are suffering from it. An enquiry into this condition would be worthwhile within the New Zealand context.
Sick leave in New Zealand allows for ten days per year, which is insufficient for a Long Covid sufferer. Once sick leave and annual leave are exhausted, employees may request unpaid leave or changes to their working conditions.
This is where businesses must assess their options carefully. Dismissing a staff member due to Long Covid should be a last resort, only after extensive discussions, medical evaluations and legal guidance.
The idea of ‘frustration of contract’ – where an employment agreement is ended due to an inability to perform duties – is problematic in the case of Long Covid, as many people eventually recover and can return to work.
Businesses must also consider the cost of replacing staff. Losing experienced workers means losing valuable institutional knowledge. Training new employees is expensive and time-consuming, often causing more disruption than finding ways to support existing staff through their recovery.
I wanted the Royal Commission to know that, alongside the legislative issues of balancing public health and employment law, lies a persistent employment issue that many businesses are facing and is simply not going away.