Thank you to those members who attended the Zoom session we held recently, we hope you have found it useful in answering your questions and allowing you to hear the discussions of what others are doing.
We hope these FAQ will answer your questions. Please contact our team: [email protected] or call us on 0800 322 388 if you have any further questions.
Where further details are in an Early Learning Bulletin or elsewhere, we have provided links to the information.
- Information is continuing to become available. The information below was accurate at the time of publishing.
- Some of our answers will be specific to individual situations, so please be careful if you choose to apply these to your own Service.
- The information below is not legal advice. If you are unsure of how to apply the information below to your situation, please contact us.
Can teachers go on unpaid leave just in case the MOH amend their instructions again?
Kaiako can go on unpaid leave by mutual agreement with their employer but must be vaccinated to return to the workplace.
If there are no redeployment options. I understand we can advise staff members not vaccinating that they can use annual leave by negotiation. Can you please confirm.
Yes, unvaccinated Kaiako can use annual leave by mutual agreement. You must give the staff member 2 weeks’ notice in this instance.
Staff members have said will not return to the workplace effective immediately - requesting sick leave due to stress, then annual leave. What do I do when their annual leave runs out after 16 November, and they still don’t want to get vaccinated?
Keep talking with your staff member, give advice and support on vaccination requirements as per mandate, and encourage them to talk to a trusted health professional.
If they are unvaccinated from 16 November, they cannot return to work on site. So if there is no option to redeploy them, you may start the termination process and give notice. You may begin the termination process while they are on annual leave if you choose.
Can we require a staff member to use annual leave as part of the four weeks’ notice (post 16 Nov)?
No - you can only direct a staff member to take annual leave when you can’t agree on when to take annual leave, or during a period of close-down.
Can we, should we elect to, advise them that they have to use outstanding annual leave during this four weeks’ notice period i.e. so I pay two weeks ‘notice’ and then they have to take two weeks ‘leave’ as part of it.
No – You must abide by the terms of the employment, if the notice period is 4 weeks in the employment contract, then you must provide 4 weeks’ notice and pay any remaining annual leave entitlement as per Payment for leave and holidays in final pay.
If we give the 4 week notice period from January 1, our centre is closed and all staff are on annual leave during this time - do we still have to pay the 4 weeks’ notice of pay?
Yes. You must abide by the terms of the employment, if the notice period is 4 weeks in the employment contract, then you must provide 4 weeks’ notice and pay any remaining annual leave entitlement.
Do I understand correctly that after 16 November I can give staff notice of termination, and I must continue paying them for those 4 weeks?
Yes, you must honour the terms and conditions of employment.
What about leave without pay?
You can only use leave without pay by mutual agreement. The employer must consider this option but if it does not meet employer needs, they do not have to agree to leave without pay.
Can you offer the 2 weeks annual leave as part of the notice period, as long as it's a mutual agreement?
Yes, if it is agreed, but the employer would not request this of their employee.
Do we pay outstanding leave after the 4 weeks’ notice?
Yes. See the following page on the Employment New Zealand website: Payment for leave and holidays in final pay
Regarding notice period can this be given while already on closed annual leave time. Do we give the 4 weeks’ notice from our starting back date?
You can proceed with the notice period as per the employment agreement during close down, or while the staff member is on annual leave if you have completed your due process.
Timing of termination/dismissal
We have employees that want their termination in writing prior to the 16th of November as they have refused the vaccine, what are their recommendations regarding this without putting the employer at risk?
No, you cannot give notice before 16 November.
Can we give the four weeks’ notice before 16 November, so that the four weeks starts ticking before 16 November? Given this date has been known for many weeks already, why do we need to give four more weeks’ notice. It’s expensive for employers, because by then (hopefully) we will be open a bit more, and I am paying another teacher, and paying out the notice.
No, you cannot give notice before 16 November.
Can I give them a deadline for letting me know if they intend on being vaccinated?
They have until the end of 15 November to get their first vaccination and will need to inform you on 16 November if they have not done so. You can’t make them tell you before this date.
What if I employ and train a replacement only for them to get the vaccine last minute?
We recommend against recruiting or training a replacement until after 16 November, unless the person has resigned. If it for a specialist support role, you can start training as it is good to have a backup person. Be careful with the language you use and don't refer to the training as replacing someone.
I sat in on a ZOOM hui last week that indicated we shouldn't be undertaking any dismissal processes until further down the track for unvaccinated staff members - closer to 1st January. Please confirm.
There are two vaccination deadlines – staff must have their first vaccination by 15 November. If a staff member hasn’t had their first vaccination by then you can start the termination process from 16 November.
If a staff member who has had their first vaccination, doesn’t get their second by 1 January 2022, you can start a termination process for them then.
Staff not getting vaccinated
Do we know what the repercussions are if our staff are not vaccinated by 15 November and remain in the workplace?
The infringements are clear in the PHO, however MoE advised they do not foresee a flurry of infringement notices from 16 November, but services and employees need to comply with the law.
What happens if the unvaccinated employee(s) turn up on Tuesday 16 November?
You must tell them that they cannot be on site and ask them to leave (have a copy of the Health Order available to show them)
How can we navigate it, if parents ask whether our service has any teachers who are, and will not want to get vaccinated?
You must tell parents that you cannot tell them this information as it is private to the individual teachers. After 16 November, parent’s expectations are that all your staff are vaccinated.
You can confirm that your service is compliant with the public health order.
If kaiako not fully vaccinated by 16 November (ie: due to have second vaccine) do they have to have weekly testing?
Only staff in a Level 3 area who have had their 1st vaccination need to get weekly testing until their 2nd vaccination
What can we say to our parents on 16 November if a teacher decided not to get vaccinated and does not come to work with the children and has no farewell etc. I’m thinking, what are we allowed to say legally?
All you can say is that they have left the service. You can’t say why as this is private information.
Can a staff member choose not to be vaccinated, but to undergo regular testing instead?
No, all staff members who do work covered by the Public Health Order must have received their first dose of the COVID-19 vaccine by 15 November 2021 and, in alert level 3 regions, undergo regular testing until they are fully vaccinated (no later than 1 January 2022).
Can a staff member take leave rather than be vaccinated?
This Order applies to those who are physically onsite. A staff member who is on leave will become subject to the Order when they return to work. The usual policies and funding settings around leave apply.
Do they need to complete a mandatory report if employment ceases?
No. The Teaching Council have said “Teachers are not breaching the Code | Ngā Tikanga Matatika by choosing not to be vaccinated…. “As choosing not to be vaccinated remains a personal health decision, the Council has no mandate or authority to use any conduct, competence, or disciplinary processes to investigate. Additionally, vaccination status does not impact on the ability to register as a teacher or be issued with or renew a practising certificate”.
Do I give them leave without pay till they decide or is it a redundancy and do I need to give notice for this and therefore is it leave without pay or paid notice period but not onsite?
If your staff member chooses to remain unvaccinated, work with them and explore all options available to help them/support their decision. If they are still unsure, they could use their annual leave, if there is no work for them to do off-site. Leave without pay is by mutual agreement. You may decide your centre can’t support this.
You would be having discussions in good faith but ultimately the employer decides.
It is not a redundancy situation. If they are not vaccinated by 16 November they cannot return to work onsite until they are fully vaccinated, .
Who can support us with the termination process?
Email [email protected] or [email protected]
We are holding a Member Connect on Monday 16 November to provide more information and support with this.
Additional information is available on the Employment New Zealand website:
Terminating employment agreements during COVID-19
If a teacher is not vaccinated, and can’t come on site, then she cannot reasonably complete her role. What grounds, legally, do I have to terminate her employment?
If after exploring all options with your staff member to work off site, and there are none, under the Public Health Order they cannot fulfil their role as a teacher. This means you must start the termination process.
Will we have to pay for relieving teachers from 16 November as well as continue to pay the vaccine-refusing teacher long-term when it had been thought there would only be a bill for the notice period in the ECECA and the leave she has accumulated?
If you do not have the staff to cover ratios you may need to pay a reliever as well as the notice period and accumulated annual leave for the teacher who is leaving as per the Holidays Act.
In response to the mandate and short periods of notice how does this effect employment contracts and our obligations as the employer to acknowledge the standard termination processes?
You do not give notice until 16 November. You must abide by the terms of the employment, if the notice period is 4 weeks in the employment contract, then you must provide 4 weeks’ notice and pay any remaining annual leave entitlement.
What duties can unvaccinated teachers who are exempt safely undertake?
Unvaccinated teachers cannot be on site. They can only undertake duties where they are not at the service.
What if a staff member undertaking work or providing a service onsite is unable to be vaccinated?
The Covid-19 Public Health Response (Vaccinations) Order 2021 has been amended to clarify the requirements relating to medical exemptions. All exemptions for the education sector need to be approved by the Director-General of Health.
Current medical exemptions from the vaccination requirement are no longer valid. If your staff member had an exemption from vaccination on medical grounds, or consider that they need an exemption, they need to talk to their medical practitioner about applying for a new exemption.
Only a medical doctor or nurse practitioner can apply for a new exemption. They will assess your employee and, if they consider your employee fits the criteria, apply for an exemption to the Ministry of Health on your employee’s behalf.
They will not be able to work on site where children may be present after 15 November, and you may provide them with alternative duties where possible.
If alternative duties are not available, and the employee has provided confirmation from their doctor or nurse practitioner that they are seeking an exemption on your employee’s behalf, then you may need to discuss discretionary leave while the employee waits for their application to be processed by the Ministry of Health.
If you receive written advice that a staff member is granted an exemption by the Director General of Health, you should carry out a health and safety risk assessment in consultation with your employee to determine what measures can be put in place to minimise risks to the exempt person, other staff and tamariki.
Who needs a vaccine?
Are administration staff who have contact with staff and families - induction etc - and walk through the centre included in the mandate?
Yes, because they are on site and have contact with tamariki.
If I never work on site, do I have to be vaccinated?
No. This Order only applies to those who are physically onsite or for excursions and may have contact with children in the course of carrying out their work
It does not apply to those who are performing services only remotely. If services are partially on site and partially remote, then the vaccination requirements apply.
Is it advisable to write up a covid vaccination policy referring to the order but be specific that it only applies to staff working at the centre but we advise parents that attend functions at the centre, to wear masks?
Yes, this is correct.
If they come into the centre to do voluntary work, will they need to provide us with a vaccination certificate?
Yes, voluntary work is covered by the Public Health Order so they will need to provide evidence of their vaccination and be recorded on your register.
What about Christmas parties in the centre?
Families visiting the centre do not need to be vaccinated.
Do we need to get vaccine status for Committee members who are attending meetings when children are in attendance?
Yes they are covered by the Public Health Order as they are a volunteer, and are on site when children are present.
What about parents coming on an excursion?
Parents on an excursion are not required to be vaccinated as they are not a volunteer working “at” an education service or employed or engaged by the education service.
Parents and visitors and masks
Our team are fully vaccinated. Our centre has decided that we want parents to wear masks on drop off and pick up. One family is refusing to wear masks.
Are we able to enforce this?
If it is in your WorkSafe COVID health plan and policy, yes you can. Ensure you have completed a risk assessment.
Does it need to be listed in our Policy?
Yes, it should be.
What are our rights to do all we can to keep our staff and all children safe verses their rights to not have to wear a mask?
- To manage pick up/drop off you would need to get the parent(s) to call you from the car – tell them not to wait at the gate.
- A staff member in a mask will come to meet them and collect the child. The sign-in sheet will need to be taken to the person to sign.
- Remember to also get any other parent documentation completed e.g., medication permission and acknowledgement.
Financial assistance for kaiako
Are staff eligible for financial government assistance once they have finished in ECE?
Staff will need to ask MSD - https://www.workandincome.govt.nz/products/a-z-benefits/jobseeker-support.html#null
What is the stand down period for resignation and government support?
I have been asked from staff who have their contracts terminated with 4 weeks notice, about the option to obtain support on the Wage subsidy from the 15th till the end of the 4-week period
Staff will need to ask MSD - https://www.workandincome.govt.nz/products/a-z-benefits/jobseeker-support.html#null
MOE Funding and Ratios
What happens if you cannot fulfil your 80% obligation for funding if you cannot find staff? Would MoE still pay the 80% funding during this time?
MOE are working on this – they will let us know soon.
With the inevitable of having to amend centre licenses to adapt to ratio's, how long will this process be? In previous experience has been quite extensive wait times
MoE will come back to us on this one, but they are aware that some flexibility will need to apply.
Should the centre be providing meals or asking parents to send meals from home during level 3?
Centres can provide food to children if they choose to. If you do, you must ensure there is no sharing of food and drink between children. You must ensure drink bottles, baby bottles, crockery and cutlery are not shared between children.
If continuing to provide food prepared on the premises, food handlers must adhere to standard good hygiene practices. See this link for advice for food handlers.
I have a staff member who is unable to return to work under level 3 due to high health risk but is still able to work from home providing distance learning for children as they have been doing up to now. If they are working from home do we continue to pay them their normal wage?
Yes, unless you have negotiated anything else in good faith and that your staff member (and others) have agreed.
If a teacher, who is required to return to work in the centre does so, but while at centre gets sick, and has no sick leave or annual leave left, what is the process?
Employers can apply discretion. You can also consider anticipated sick leave for a certain number of days and can also anticipate annual leave. If the teacher is willing to consider this as an option you would want to find out when their anniversary date is as this will inform you when their next sick leave entitlement is due.
If their anniversary date is soon then you may be more willing to anticipate a few days of paid sick leave, but if the anniversary date is a few months away then you may be less inclined to offer this. If the teacher leaves the centre before their next anniversary date (and before their next lot of sick leave is due) then you cannot recoup sick leave, so this is money you will not be able to recover. However, if you offer anticipated annual leave then you can seek to recover this amount should the teacher leave prior to the date they have accrued this leave.
If you do agree to any such arrangement ensure you consult with the staff member and get their agreement and then capture it in writing and get them to acknowledge they have read and understood the offer/arrangement.
If they have run out of paid leave entitlements, then leave without pay may be an outcome.
If you are getting the wage subsidy on their behalf, then you need to forward this payment to them regardless of if they are sick. If they have exhausted all paid leave entitlements, then in this circumstance you need only pass on the amount you receive for the wage subsidy. But again, you can apply discretion and offer special paid leave.
Children starting school
We have tamariki who are turning five and are due to start school. What happens with these children?
We encourage you to talk to whānau about transition for these tamariki and what their preferences at this time may be. If they prefer, they can keep their children enrolled with your service for longer, rather than enrolling in school at this time. This may help reduce any stress that some children and parents might be experiencing about starting school. If whānau choose to delay their tamariki’s enrolment at school, services are still funded by the Ministry of Education until the day before their sixth birthday.
If whānau have started the enrolment process with their school, they can stop this or un-enrol their tamariki so they can return to your centre.
Whānau who want to enrol their tamariki in school, and those with tamariki about to turn 6, should discuss with their intended schools about any transition and support available at this time.
What if a child who hasn’t started school and turns six during the lockdown period?
From the age of six there is a legal requirement for every child to be enrolled and to attend a registered school. There are no provisions in the emergency legislation that suspends that requirement, so if a child turns six during the lockdown they need to be enrolled in a school. More information is available in the August 24 Early Learning Bulletin.