Can I require my employees to be vaccinated? (Part 2)

Thursday 7 October 2021

The Employment Relations Authority’s (ERA) decision in GF v New Zealand Customs Service [2021] NZERA 382 showed that employers will be on strong ground if they choose to dismiss an employee who falls within the order but refuses to be vaccinated. It is important to note that the employer in this case followed thorough process such as conducting a risk assessment and had genuinely considered alternatives to dismissal. The ERA is of the view that the employer had undertaken an ‘impressive review’ of the risk and clearly identified the risk factors specific to the employee’s role.[1]

For roles falling outside of the COVID-19 Public Health Response (Vaccination) Order 2021 (Order)[2], employees cannot be required to vaccinate as it may contravene their rights under the New Zealand Bill of Rights Act 1990 (BORA) and Human Rights Act 1993 (HRA). Subject to anti-discrimination rules, an employer can negotiate to include vaccination requirement in an employment agreement when hiring new employees.

Where there is a justifiable health and safety reason to require vaccination to perform a role (categories 2), perceptions on what is considered justifiable health and safety reasons are subject to change as a result of the new Delta variant. There are discussions about aged care employees, supermarket employees and transport drivers to be included as frontline workers. Testing is already required for employees before crossing the Auckland border.

If an employer wants to make vaccination a requirement for existing employees (outside the Order) then the employer must conduct a formal risk assessment of the relevant role with the employees to justify why vaccination is required to fulfil the workplace health and safety obligations. WorkSafe New Zealand[3] and the Ministry of Health[4] have introduced vaccination guidance to help employers complete this risk assessment. The key risk factors will be:

1. the risk that the role is exposed to the virus;
2. that the role poses a high risk for widespread community transmission and/or;
3. whether the role interacts with vulnerable people who are at serious risk of illness.

If an employee refuses to be vaccinated, the employer should consult with the employee to understand the employee’s position and ensure the employee’s contractual rights and rights under the BORA and HRA are not compromised. The employer must also consider alternatives such as requiring employees to wear PPE, maintain social distancing and option for redeployment.

Vaccination as a condition of doing business?

If a member of the supply chain requires vaccination as a condition of doing business, then there are measures employers can take:

1. Enquire if this condition will be lifted at alert-level 1 and 2, when New Zealand reaches population immunity[5] or once the government has reopened our international borders.
2. Inform your employees of this condition and survey employees (following principles of the Privacy Act 2020) to understand vaccination levels throughout the office.
3. Encourage vaccination and ensure employees have access to expert health advice, and tell them they can have time off to get vaccinated.

If there are employees who are not vaccinated, employers may consider discussing with the supply chain if their concerns can be met by requiring employees to wear PPE, maintain social distancing or redeployment from client-facing roles. If the condition is time-limited, employers can consider negotiating with the employee for a period of annual or unpaid leave. If all else fails, employers may consider termination of employment on the grounds that there is no work the employees can do.

If an employee refuses to work with employees who are not vaccinated, then employers can rely on the government’s alert-level regime. If the government has decided that the level of interaction is appropriate and safe at the relevant alert-level, that judgment will prevail. In which case, a refusal to return to work is a refusal to work. Employers can proceed with the normal contractual and employment law options in these circumstances.

Vaccination for office employees.

New Zealand’s current alert-level framework indicates there is a low risk of transmission for standard office employees to be allowed back into the office at level 2. In line with the evolving nature of this pandemic, employers should review their risk assessment following any announcements made by the Ministry of Health.

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