Thursday 9 September 2021
That will depend on the role of your worker. There are 3 general categories of work roles:
Category 1: MIQ and Border workers covered by the COVID-19 Public Health Response (Vaccinations) Order 2021 (Order).
This category covers workers at the ports and the airports and other front-line staff. Workers can and are required to be vaccinated in accordance with the Order.
Where workers in this category had refused vaccination, some employers had terminated their employment in reliance of the Order. Some workers have made a claim at the Employment Relations Authority that the termination was unlawful and we expect a decision in the coming months.
Category 2: Roles where there is a justifiable health and safety reason to do so?
These group of workers are not covered under the Order but these workers can be required to be vaccinated by their employer on health and safety grounds. These workers are usually in high-risk industries such as age and residential care facilities. Employers in these industries have already introduced mandatory vaccination policies to protect workers and residents.
Where employer requires a particular role to be performed by a vaccinated worker, they would have to carry out a health and safety risk assessment. This must be done in consultation with the worker. It is the nature of the role that requires vaccination so an employer should consider if they have any roles that require vaccination rather than the individual performing those roles.
“You must assess the risk in collaboration with your workers and their representatives… an assessment usually includes two factors: the likelihood of being exposed to a risk while performing a role and the potential consequences of that risk.”
worksafe.govt.nz
Employers should rely on the most up to date information on the Ministry of Health and any industry governing body when completing the risk assessment. Employers must also consult with workers and any union before determining a role is to be performed by a vaccinated person.
Where a worker performs a role that can lawfully be required to be vaccinated, but refuses vaccination, employers must take several steps before it is justifiable to terminate. The overarching test for justifiable dismissal is determined on whether the employer has acted in a manner that a fair and reasonable employer could have done at the time of the dismissal.[1] Employers are still bound by duty of good faith under section 4 of the Employment Relations Act 2000.
The steps required (before dismissal is justifiable) depends on the nature of the role and the industry but at a minimum it must include consultation and consideration of deployment within a business. Employers should also look into its own policies and employment agreement to ensure compliance with any processes following a worker’s refusal to vaccinate. We suggest taking legal advice before employers proceed with terminating a worker’s employment
Category 3: Roles that do not fall into category 1 or 2 (most businesses).
It is unlikely that an employer can justifiably require vaccination where neither category 1 nor 2 applies. The threshold to meet the health and safety justification for mandatory vaccination is high.
In this case, employers cannot require vaccination but can encourage it. This could include allowing workers paid time off work to get vaccinated. These are some incentives being used for vaccination:
Employers should be careful with vaccination incentives because discrimination and/or disadvantage issues under the New Zealand Bill of Rights Act may arise if there are workers who cannot be vaccinated for a reason which falls within a prohibited group of discrimination such as religious, or medical reasons.
Can an employer ask if a worker is vaccinated?
Yes, the employer can enquire but the worker can refuse to answer. For workers in a role where it is a requirement to be vaccinated (categories 1 and 2), an employer can assume the worker is not vaccinated if they refuse to answer.
The principles of the Privacy Act apply to collecting personal information about a worker’s vaccination status. Where it is justifiable for an employer to require vaccination (categories 1 and 2), there is a lawful purpose to collect personal information about a worker’s vaccination status. The employer must advise the worker of the purpose for collecting the information. The information must be kept safe and can only be disclosed with the consent of the worker and for the purpose the information was collected for.
Where an employer cannot require a worker to be vaccinated (category 3), the employer should take legal advice before collecting information around workers’ vaccination status.
Introduce a vaccination policy.
It is likely that businesses will have to deal with a mixed vaccination work force. In which case, vaccinated workers may refuse to work alongside unvaccinated workers or they may seek alternative working arrangements to avoid exposure to unvaccinated workers. In its extreme it may result in bullying and isolation of unvaccinated worker.
Businesses can introduce a vaccination policy which covers issues mentioned above so expectations and responsibilities are clear for all parties. Employers should start thinking if they can require workers to be vaccinated, what issues could arise in their workplace and if they might tackle them.
This article is for general use only. Advice should be sought for specific circumstances. Please consult Teresa Chan at Teresa Chan Law Limited, Level 3, Westpac Building, 106 George Street, Dunedin 9016, ph. 477 1069, or email teresa@tchanlaw.co.nz
[1] Section 103A of the Employment Relations Act 2000
