As New Zealand grapples with community transmission of the delta variant of COVID-19, the resulting alert level restrictions and lockdowns, and the ramping up of vaccinations, we have been receiving a range of questions about the approach of employers to vaccinations and how these tie in with employment law obligations.
Can employers make vaccinations mandatory?
There is no single answer to this as it will depend on the nature of the role.
Employees under Government Order – Border Workers
Earlier this year, the Government issued an order that mandated vaccinations for border workers in specified roles at managed quarantine and isolation facilities, and at airports and ports.
The upshot of this was that if employees in those roles did not obtain both vaccinations within the required timeframes, or were not able or willing to provide evidence of having done so, the employees could not lawfully continue to be employed in their roles. This meant that for these non-vaccinated employees to continue employment they would need to be redeployed to another role or other alternative arrangements made, otherwise their employment would be terminated.
There has already been one case brought by a Customs Service worker who was dismissed in reliance on this Order. The worker alleged the dismissal was unjustified. The Employment Relations Authority (GF v New Zealand Customs Service) last week upheld the dismissal.
Employees not covered by the Government Order
For employees not covered by the Government order, the law is not quite so straightforward. In our view, while employers are free to encourage employees to be vaccinated, mandating vaccinations for existing employees who are not covered by the Government order, lends itself to significant legal risk. There are various applicable statutes that affect the situation.
The Health and Safety at Work Act requires that employers take reasonably practicable steps to ensure the health and safety of workers and others in the workplace, including customers and clients. While there may be a legitimate argument in some workplaces that health and safety considerations would require that some or all workers be vaccinated, that will need to be carefully weighed up against the individual’s right to refuse medical treatment (a vaccine) that is enshrined in the Bill of Rights Act.
The Privacy Act also requires that collection of information about individuals (including whether they have been vaccinated) must be for a lawful purpose connected with the business. Health and safety of workers and others on the premises would probably be such a lawful purpose – and, while many employees may be happy to provide that information, they are not obliged to do so. Further, an employee may not be subjected to any unjustified disadvantage by the employer based on their decision to not be vaccinated, or not to provide the information.
The Human Rights Act might also apply, such as where a person’s reason for not being vaccinated is based on religious grounds, or where there is a medical reason that prevents their being vaccinated. Care must be taken not to unlawfully discriminate against any individual under this Act. Even if the employer has the information about whether its employees are vaccinated, the use to which that information is put must be lawful and reasonable.
If an employee is not vaccinated, or will not disclose whether they are vaccinated, the next question is what if any action the employer can take in relation to that employee, and whether it might be reasonable to require the employee to be vaccinated. The answer to that question will depend on the individual circumstances of the case. We consider that employers should take the same safety precautions with employees who will not disclose their vaccination status as they would with employees who are known not to be vaccinated.
Bear in mind when weighing up the factors that the underlying basis for even considering whether employees should be vaccinated is the obligation under the Health and Safety at Work Act to take reasonably practicable steps to ensure the health and safety of workers and others in the workplace.
Factors to be considered include:
(a) The severity of the health and safety risk that might exist in the workplace as a result of workers or others being exposed to COVID-19 – this will vary according to the nature of the business. For example, an aged care home would carry a higher level of risk than an office based business with minimal client or customer contact.
(b) Whether there are other practicable steps that can be taken to discharge the health and safety obligation – such as the wearing of PPE, or moving unvaccinated workers to other roles or parts of the premises where the risk is mitigated, such as away from contact with members of the public.
(c) What the reasons are for the employee not being vaccinated – which could include medical reasons.
(d) What if any provisions of the relevant employment agreement might apply.
Where the risks of not being vaccinated cannot be mitigated by making operational adjustments, employers may wish to consider instructing the employee to be vaccinated – any such instruction would need to be both lawful and reasonable, and, if that is unsuccessful, taking disciplinary action up to and including dismissal because of a refusal to be vaccinated.
We do not recommend these steps be taken without first seeking advice about the circumstances. Either of these steps would provide grounds for the employee to raise a personal grievance, which would then require the employer to be able to justify the decision both substantively and procedurally. If the decision cannot be justified, the employee would be entitled to remedies including potentially reinstatement, lost remuneration and monetary compensation.
Employers are in a much stronger position when it comes to making it a condition of employment for prospective employees that they be vaccinated against COVID-19. This requirement could be based on health and safety considerations under the Health and Safety at Work Act, similar to a requirement for satisfactory results of a pre-employment drug test. Note however that it is still unlawful to discriminate on a protected ground under the Human Rights Act when it comes to the offer of employment. We recommend that even a pre-employment requirement to be vaccinated should be related to the nature of the role to which the employee is being recruited, and the extent of the risk posed by that role to the employee and others.
While employers can strongly encourage vaccinations, and make policies accordingly, we do not consider that there is a general right to require employees to be vaccinated. The only exception is if there are government Orders in place that make it compulsory for people in particular roles to be vaccinated. There may be some roles where there is a strong health and safety reason for vaccinations, backed up by a health and safety risk assessment, which would entitle an employer to consider mandatory vaccinations, but imposing such a requirement on existing employees should not be entered into lightly.
The situation with prospective employees is more straightforward, and where there is a legitimate health and safety imperative (subject always to the provisions of the Human Rights Act) it can be a condition of any offer of employment that they be vaccinated.
If you are needing advice regarding your own unique circumstances, we will be happy to help.