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No jab, no job?

One of the hottest topics in employment relations right now is “can an employer require all of their employees to be vaccinated against Covid-19”.

While the answer to that question is going to be the topic of much debate, and no doubt a few cases in the Employment Relations Authority, the default answer is of course “No” — however, there are a few exceptions.

The primary reason that “No” is the default, is that vaccinations fall into the category of being a “medical treatment”, which under the Bill of Rights Act 1990, a person has the right to decline.

There are, however, a few exceptions where an employer can, and in some cases must, ensure that their employees are vaccinated against Covid-19 in order to be able to continue to work in a particular role.

The most notable of these are those workers who are subject to the Public Health Response (Vaccinations) Order 2021 (“the Order”). This covers people who work in managed quarantine or isolation (MIQ) facilities, affected airports, affected ports, aircraft and aircrew, and workers who handle items that pass through those facilities and have contact with workers at those locations.

While “the Order” overrides the Employment Relations Act 2000, even employers covered by “the Order” must follow a fair process, in good faith, with those employees who refuse to be vaccinated, taking into account the reason for the refusal and any potential alternative duties they could undertake, before considering termination as a potential outcome.

In one of the first “test” cases to come before the Employment Relations Authority relating to the dismissal of an unvaccinated worker, Customs NZ were cleared of any wrongdoing. The authority found they were justified in dismissing an unvaccinated Border Protection Officer following a long consultation process. Customs NZ told the worker they needed to be vaccinated otherwise their role would be terminated.

So what about current employees who are not covered by the (Vaccinations) Order?

In these cases it is likely that an employer can only require employees to be vaccinated for certain roles where high risk criteria are met. This would need to follow a thorough health and safety risk assessment that determines: 1) a high likelihood that the person performing the role may be exposed to Covid-19; and 2) the consequences would be significant for other people. Such a scenario is most likely to fit the category of an employer who operates almost entirely in a Covid-19 high-risk sector which presents an imminent risk of harm (for example, aged-care facilities).

What about new employees?

While in theory it should seem easier to engage a new employee subject to proof of their vaccination status, the reality is much less clear. Together with an assessment of the risk associated with the particular role, the employer will also need to take into account the risk of discrimination under the Human Rights Act and the collection or disclosure of vaccination information under the Privacy Act. The provision of vaccination clauses in employment agreements will no doubt be the subject of much discussion, debate and case law.

Incentive measures:

The alternative to requiring staff to be vaccinated is to both educate and in some cases incentivise employees to get vaccinated.

A number of employers are now providing gift vouchers for their employees who provide proof of vaccination, or a paid day off when the company achieves a certain vaccination percentage rate; others are providing paid time off for staff to go and get vaccinated.

Other employers are providing onsite education and information to their employees in order to break down the barriers and misinformation about the vaccine, and to reduce vaccine hesitancy.

It is important to understand that either the presence of Covid-19 in New Zealand or the roll-out of the Covid-19 vaccination programme does not alter anything in current New Zealand employment law. In this regard, it is important to seek professional advice before you consider any actions that may impact the employment rights of your employees.

Disclaimer: The information contained in this article is of a general nature and is not intended as legal advice.

■ Craig is the HR and employment relations specialist for Business Central in Hawke’s Bay and Gisborne. Email: craig.sidoruk@businesscentral.org.nz

Craig Sidoruk