Can employers call the shots with the COVID-19 vaccine?
As the COVID-19 vaccine rollout ramps up in New Zealand, we have set out our frequently asked questions and recommendations, below.
1. Do employers have the power to enforce COVID-19 vaccinations on employees and/or applicants for employment?
The Government has recently implemented the COVID-19 Public Health Response (Vaccinations) Order 2021 (“the Order”), which requires that workers in high-risk industries (“affected workers”) must not carry out certain work unless they are vaccinated (e.g. MIQ, airport and port workers). The only exception to this is where a health practitioner determines that it would be inappropriate for the affected worker to be vaccinated.
However, for workplaces that are not covered by the Order, whether an employer can require that only vaccinated workers perform certain work/roles involves health and safety, employment and human rights considerations.
Vaccination is a medical treatment. Under the New Zealand Bill of Rights Act 1990, individuals are entitled to refuse medical treatment. Generally speaking, an employee is entitled to decline to receive the COVID-19 vaccine.
Further, the Human Rights Act 1993 (“HRA 1993”) protects individuals against unlawful discrimination in their employment. Under the HRA 1993, an employer cannot, on the basis of any prohibited grounds of discrimination (e.g. religious beliefs, medical condition, sex etc):
- refuse to employ an individual;
- offer an individual less favourable terms of employment/conditions of work or any other benefits made to other applicants or employees of the same or substantially similar capabilities;
- terminate or subject an employee to any detriment, in circumstances which other employees would not be terminated or subjected to such detriment; or
- retire or require an employee to resign.
Accordingly, where an employee/applicant’s religious beliefs or medical condition (for example) prevents them from being vaccinated, taking any of the steps listed above in response to their refusal to be vaccinated could amount to discrimination under the HRA 1993.
For workplaces where there is a high-risk of exposure to COVID-19 and/or workplaces with vulnerable persons (for example, hospitals or rest homes), an employer may be justified in requiring that only vaccinated workers will be permitted to perform certain work/roles to meet its obligations under the Health and Safety at Work Act 2015 to eliminate or mitigate any health and safety risks as far as reasonably practicable, as unvaccinated employees are more likely to be exposed to the virus and/or transmit the virus to vulnerable people.
However, for lower risk workplaces (where there is limited exposure to COVID-19), permitting only vaccinated workers to perform such work on health and safety grounds and dismissing an employee/refusing to employ an applicant on that basis will be more difficult to justify, particularly if an employee/applicant has legitimate reasons (particularly on the grounds of discrimination i.e. health reasons) for refusing to be vaccinated.
Further, if a business could reasonably accommodate an employee/ applicant who is not vaccinated (i.e. through PPE, social distancing or working from home), it is unlikely that the employer could justify requiring the employee/applicant to be vaccinated against COVID-19 in order to continue performing the role.
2. Where the Order does not apply, can employers encourage staff to get the vaccine?
Yes, employers are able to encourage staff to receive the COVID-19 vaccine (provided there is not any undue pressure on staff to receive this vaccination and/or employees are not discriminated against if they decline to receive the vaccine).
Employers could encourage employees to be vaccinated by:
- facilitating onsite vaccinations;
- allowing employees to get vaccinated during work hours without loss of pay; and
- providing employees with relevant and timely information from the Ministry of Health about the vaccination and its benefits. This can be found here: health.govt.nz/our-work/diseases-and-conditions/covid-19-novel-coronavirus/covid-19-vaccines
3. Can employers introduce a Vaccination Policy?
Yes, employers could introduce a vaccination policy on health and safety grounds, provided the policy is reasonable in the circumstances and does not discriminate against employees. Any policy should only be implemented if certain minimum procedural aspects are met, including:
- drafting a clear policy expressly stating:
- the business’ position on vaccination of employees (for example, limiting the requirement for vaccination only to roles in high-risk areas of the business);
- the circumstances in which employees may be required to change their working arrangements and/or take further precautionary measures (e.g. working from home, social distancing, wearing PPE gear);
- any acceptable exemptions for employees under the policy (for example, where high-risk workers are unable/object to receiving the COVID-19 vaccine on the basis of one of the prohibited grounds of discrimination); and
- possible consequences of non-compliance with the policy;
- consulting with employees on that policy before introducing it and considering the feedback received with an open mind;
- clearly informing employees of the policy when it is adopted and allowing enough time for compliance; and
- enforcing the policy consistently and fairly.
4. What case law is there that deals with the issue of COVID-19 vaccinations?
On 1 September 2021, the Employment Relations Authority (“Authority”) issued its first substantive determination in relation to mandatory vaccination, GF v New Zealand Customs Service  NZERA 382.
The employee, GF, was employed by New Zealand Customs Service (“NZ Customs”) in a border protection officer role at a maritime port facility. In March 2021, when the Government announced the Order, NZ Customs undertook a thorough health and safety risk assessment of its organisation to determine which roles may be covered by the Order and would be required to be undertaken by a vaccinated worker. NZ Customs concluded that due to the risk of COVID-19 transmission in GF’s role, her role could only be occupied by vaccinated individuals.
Following a lengthy consultation process, NZ Customs determined that GF was unwilling to be vaccinated. Despite having numerous opportunities to do so, GF refused to provide her reasons for refusing to be vaccinated against COVID-19. NZ Customs explored changing work arrangements to mitigate exposure risk, and redeployment into a different role. However, NZ Customs was unable to identify other available roles or appropriate working arrangements and, as a result, GF was dismissed from her employment with NZ Customs.
The Authority determined that GF’s dismissal was justified, as NZ Customs:
- advised GF of the reasons why it believed her role could only be undertaken by a vaccinated worker;
- made it clear to GF that her refusal to be vaccinated against COVID-19 could result in her employment being terminated;
- provided GF with numerous opportunities to identify concerns about the vaccination process and NZ Customs risk assessment. However, GF did not provide any reasons for her refusal to be vaccinated against COVID-19 which hindered NZ Customs ability to work through her concerns; and
- considered both GF’s responses and any possible alternatives to dismissal, before terminating GF’s employment.
This determination by the Authority indicates that:
- where a role has a high-risk of exposure to COVID-19, an employer may be justified in requiring that the role be undertaken by a vaccinated worker;
- businesses that are considering requiring that high-risk roles be undertaken only by vaccinated workers must undertake a thorough and genuine health and safety risk assessment in consultation with affected employees, to determine if the role can only be undertaken by a vaccinated worker despite other health and safety practices (e.g. use of PPE, sanitising, social distancing etc.); and
- if a role can only be undertaken by a vaccinated worker, and the employee currently undertaking the role refuses to be vaccinated against COVID-19, the employer must consult with the employee regarding the reasons for their refusal to be vaccinated, and consider alternatives (such as alternative duties, working from home, or redeployment), before considering dismissal.
If you have any questions regarding the COVID-19 vaccine in the workplace, you can contact us on 0800 339 002.