There has recently been commentary in the media about various District Health Boards recommending staff have the flu vaccination, questioning staff on whether they have in fact had the vaccination, and asking for reasons why not.
Waikato DHB has now implemented a policy called “Vaccinations for Health Care Workers” which promotes the screening for and immunisation against a number of infectious illnesses, including influenza.
Where current employees have not received the current seasonal flu vaccine, they will be required to wear appropriate personal protective equipment (PPE) such as surgical or procedural face masks, during the declared influenza season (usually end of June to the end of October) if undertaking clinical duties or being present in a clinical area.
Staff are required to disclose their vaccination status so the information can be collected, stored and managed by the DHB. The DHB will be subject to strict privacy regulations about how they use and protect this information.
Policies like this raise the question of, “what happens when the employee says ‘No’”?
In this case, we are talking about two issues:
- The request for the disclosure of personal (medical) information to an employer; and
- The requirement for an employee to do something they may not want to do – i.e. vaccinate or wear a mask.
What information can an employer reasonably request?
In general an employer can ask an employee (including a prospective employee) for any personal information as long as it is relevant to the role that the person does or would be doing, and is necessary for the employer to collect.
A common situation in which an employer can request personal medical information from an employee is when an employee takes sick leave and is required to produce a medical certificate. In most situations the medical certificate will not state what the actual medical condition is.
In situations where an employee has been away from work for an extended period of time (usually at least three months) and the employer is considering whether they are medically fit to perform their role, the employer can request the employee sees a doctor or specialist of the employer’s choice, provided the employment agreement states this. The employer can request that the employee consents to medical information being released to the employer.
In the context of a hospital, it is likely that information confirming that an employee is free from or protected against infectious disease would help the DHB to meet its obligations to provide a safe workplace under the Health & Safety in Employment Act 1992, and is therefore a reasonable request for information.
What would happen if an employee refuses to wear a mask?
An employee is likely to face disciplinary action if they refuse to undertake a lawful and reasonable instruction from their employer. Because the DHB has an obligation to both its employees and its patients to try to minimise the spread of infectious diseases in the hospital environment, the direction to vaccinate or wear a mask is likely to be seen as a lawful and reasonable instruction.
We recommend that all workplace policies set out the consequences if an employee refuses to comply. A Drug and Alcohol Policy that requires employees to undergo drug and alcohol testing should include a statement about what will happen if an employee does not comply. For example, if an employee refuses to submit to a drug and alcohol test and the employer believes they may be working under the influence of drugs or alcohol, the employer can commence a disciplinary process. The failure to undergo the required drug and alcohol test can be taken into consideration by the employer when deciding what action to take.
It will be interesting to see whether the DHB’s vaccination policy has the effect of increasing immunisation rates amongst staff, and whether there are any challenges to the Policy and its implementation at Waikato DHB.
Gillian Spry is a Partner in the Employment team at Norris Ward McKinnon. Gillian can be contacted at [email protected]
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