Sharp end issues for employers in vaccination campaign

19 February 2021

COVID-19 vaccines will be rolled out to border workers from this coming weekend followed by a roll out to the rest of the population from around mid-year. The Government has confirmed that it will not make vaccinations compulsory for the general public, and is relying on voluntary cooperation with a hoped for success rate of 70%. 

What this means in the employment context is that most workplaces will have to manage the health and relationship tensions inherent in having vaccinated and non-vaccinated employees working side by side. 

The right to refuse medical treatment under the New Zealand Bill of Rights Act will preclude an employer from arranging for all employees to be vaccinated without their consent. However an employer can put in place policies and procedures requiring vaccination for some staff, where that can be justified and is consistent with the employer’s obligations not to discriminate.

In such a scenario, we would also expect such businesses to have in place other measures to reduce the risk of COVID-19.

The position is most straightforward for new employees working in high risk areas. Where an employee is hired to work in an area where there is a high risk of transmitting COVID-19 to those who are more vulnerable or where there is an increased risk of community spread, then an employer may make vaccination a condition of employment.

And an employer can consult with staff to implement a policy that requires existing employees to provide proof of vaccination before undertaking high risk work where that risk cannot be adequately managed without the vaccine.

But the situation gets trickier when an existing employee refuses to be vaccinated because it is not possible to mandate a new term and condition without an employee’s agreement. This may mean that employers may have to consider re-organising staff so that only vaccinated employees work in high-risk areas, and non-vaccinated staff are deployed elsewhere in a business. Employers will need to work carefully through this having in mind their obligations not to unlawfully discriminate.

Where a business operates in a high-risk industry and it determines that vaccination is necessary to manage that risk, we recommend an employer follow these steps:

  1. Develop a policy that sets out the reasons for the requirement to provide proof of vaccination in high risk areas and the process and possible consequences for the employee if they refuse.
  2. Consult with employees and applicable unions about the policy prior to implementing it.

To be able to justify any action against an employee who refuses to be vaccinated, the employer will need to first meet with the employee to consider the reasons why the employee has refused to be vaccinated. If appropriate (for example where the refusal is due to fear of the vaccine) an employer should look to educate and encourage the employee to have the vaccine. Only then will the employer be able to consider whether they are justified in looking at alternatives such as redeployment, PPE or, where there are no other measures possible, terminating the employee’s employment.

Employers operating in industries where there is a low risk of contracting or transmitting COVID-19 will need to take a more cautious approach to their vaccination policies. A policy requiring vaccination, even for new employees, is unlikely to be reasonable in these circumstances. We can also see issues such as bullying and harassment arising between staff who choose to be vaccinated and those who don’t.

We anticipate that all employers may face challenges with customers or suppliers refusing to permit non-vaccinated employees on site. The same procedure should be followed in these circumstances but there may be stronger justification for redeployment and/or termination of employment because the employer cannot control the third party requirement. Employers could also consider whether there are grounds for redundancy or frustration of contract in these situations.

Any decisions made by an employer in response to a refusal to prove vaccination will be open to challenge by the employee. For example, where an employee has legitimate grounds for not being vaccinated due to religious or medical reasons, an employer could be open to a claim of indirect discrimination if it has a policy that requires vaccination. It will therefore be very important for an employer to be able to justify the reason for requiring proof of vaccination.

Employers (regardless of the industry) are likely to want to strongly encourage employees to get vaccinated. We would expect the government to provide information to assist with this. WorkSafe may also introduce guidance and expectations for employers working in industries where there is a high risk of contracting or transmitting COVID-19 and where there are no other means of effectively managing that risk. That guidance may give certain employers a stronger basis for taking steps to terminate employment in these high-risk industries.

Given that emotions will be high, extra diligence in this area will be required during the vaccination roll-out period – please get in touch if you have any questions about the process you should follow or if you need assistance drafting a COVID-19 vaccine policy for your workplace.

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