Employers and the COVID 19 vaccine rollout. To jab or not to jab?
As the COVID-19 vaccine rollout draws closer, it brings with it a number of questions for employers.
The New Zealand Bill of Rights Act 1990 (BORA) protects the right of everyone to refuse to undergo any medical treatment. However, some public health measures can override this right, as long as the rights of the public to be protected from harm outweighs the rights of the individual to reject any medical treatment. Fluoridation of water is an example. It is arguable as to whether the COVID-19 vaccine falls into the same category.
However, the Ministry of Health has confirmed that the COVID-19 vaccine will not be mandatory for the New Zealand public. This means that vaccination of staff within your business will be an issue for employers to manage.
Can an employer compel their employees to get vaccinated?
As a general rule, employers cannot compel their employees to be vaccinated. However, in relation to the COVID-19 vaccine employers could take the position that vaccination of all employees is necessary from a health and safety perspective. This is likely to be justifiable in some workplaces such as hospitals, rest homes and retirement villages, airports, and other workplaces where frontline staff are more likely to be exposed to the virus or to vulnerable people.
Managing the risk of a COVID-19 outbreak within your workplace is a relevant issue. Requiring workers to be vaccinated could be one of several control methods that an Employer may decide to implement in order to comply with their obligations under the Health and Safety at Work Act 2015. WorkSafe took enforcement action against four managed isolation facilities in 2020 after reviewing their health and safety measures and finding them to be inadequate.
For employers in industries or workplaces that pose less of a risk to COVID-19 exposure, the ability to enforce vaccination on health and safety grounds would be more difficult to justify.
How do you make vaccination compulsory on health and safety grounds?
Employers would need to introduce a health and safety policy that requires a COVID-19 vaccination to be compulsory for employees. Employers would need to first consult with their staff and consider their feedback before any policy was finalised and adopted. The objection of any employee to such a policy would need to be assessed on a case-by-case basis. Some employees may have a medical or other valid reason for refusing to be vaccinated.
It is unlikely that employers would be justified in dismissing an employee for refusing vaccination, especially if the employee had a legitimate reason for refusing to do so. However, there may be other options to address the risk presented. They could include moving the employee to a lower-risk role or requiring the employee to undertake specific COVID-19 protocols such as working from home.
It will be difficult for employers to establish that such protocols are required immediately, particularly if they are not already in place, but there may be scope to do so if the COVID-19 alert levels are once again raised. In the future this could give rise to differential treatment of employees who are vaccinated and those who are not vaccinated. Those not vaccinated may not be permitted to work in their normal workplace during increased alert levels.
It is also important for Employers to bear in mind their obligations to provide a safe workplace and their obligation to maintain good faith in their relationship with employees. A more effective approach in many workplaces may be for the employer to incentivise COVID-19 vaccination for employees, rather than seeking to make it compulsory.
Our employment law team are happy to help you with any COVID-19 employment or health and safety issues you may have.
Written by Tania Reweti, Associate and Hannah Speight, Law Clerk
Latest Update: 10 February 2021