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COVID-19 vaccine and employer obligations

20 May 2021

The New Zealand Government has issued a health order which came into force at 11.59pm on 30 April 2021 which requires all MIQ workers to be vaccinated against COVID-19. This also applies to all Government officials undertaking work in other high-risk border settings. The order does not cover the wider workforce outside of these categories.

With the COVID-19 vaccine rolling out to the general public in the near future, employers and employees are questioning how this will affect the employment relationship and more specifically, whether a vaccine could be mandatory for employees.

As a starting point, employers are not generally able to make vaccinations mandatory for employees as everyone has the right to refuse medical treatment under the New Zealand Bill of Rights Act 1990. However, there may be some situations where employees are required to be vaccinated against COVID-19 to undertake certain roles (e.g., front-line workers who work in hospitals or aged care homes).

There may be circumstances where vaccination is a reasonable health and safety measure.  This decision will depend on an assessment of the health risk posed to that employee and whether they are at a greater risk of becoming infected, or infecting others. Employers should also consider what alternative measures can be implemented to reduce risk, such as the use of PPE or alternative ways of working (e.g., remote working).  Justification may be easier in certain sectors. However, the grounds become less clear in workplaces where there is less risk of people getting infected, or infecting others.

If an employer reasonably believes having the vaccine is required as a health and safety measure (to perform a certain role), they must consult with affected employees before finalising any policies relating to vaccinations. If, after consultation, it’s decided that a role must be undertaken by a vaccinated person, an employer should allow employees to be vaccinated during work hours and provide reasonable time for this.

As above, an employee has the right to refuse the vaccine. If an employee refuses the vaccine and cannot perform their role for health and safety reasons, the employer will have to consider re-deployment options, and consult fully with the employee throughout the process. All discussions between employers, workers and unions about the vaccination must be in good faith. Based on current guidelines, dismissals for refusing to have the vaccine are likely to be unjustified for employees who are not subject to the health notice (unless circumstances change, e.g., there is a community outbreak in New Zealand) and employers should be looking at other options first (e.g. the use of PPE or alternative ways of working).

When dealing with employment issues arising from COVID-19, it’s important to be communicative, and deal with employees in good faith. Clear policies that explain any health and safety risks and why an employee is required to be vaccinated should be in place before taking any actions or requesting employees to be vaccinated.

Navigating issues caused by COVID-19 can be challenging due to the developing situation. Our Employment Team is here to assist with any COVID-19 related employment queries.

 

Samantha Barrett is a Solicitor in the Commercial Disputes & Employment Team at Norris Ward McKinnon. Contact Samantha.