Can an employer in New Zealand make vaccination mandatory like other health and safety requirements?
The Government has recently announced the COVID-19 vaccine (“the vaccine/vaccination”) plan, which aims (but may not achieve) to vaccinate two million kiwis over the next four months. The Government will not be making the vaccine compulsory for the New Zealand population, only certain border industries.
There are many businesses who will want everyone in the workplace to be vaccinated. They will be conscious of their health and safety obligations to their staff, customers and the public at large. Vaccination seems like a reasonably practicable solution to the risk of catching COVID-19 at work. The question is, can an employer make vaccination mandatory like other health and safety requirements?
Guidelines for existing employment relationships
In New Zealand, people have a fundamental right to refuse to undergo any medical treatment (which includes vaccines). So the legal question is not so much whether you can force staff to have the jab, but whether you can terminate their employment if they refuse.
For existing staff, there is a tension between the health and safety obligations of the employer and the individual rights of the employee. In almost all circumstances it will likely to be unlawful to terminate employment based on a refusal to have the vaccine.
A situation where termination may be available is in workplaces where the risk of catching the virus reaches a reasonableness threshold that overcomes the potentially discriminatory action of dismissing someone for refusing to be vaccinated. At the moment, that would need to be an industry such as the border, managed isolation or front-line medical staff. If our border settings change and COVID-19 becomes a part of the community (like the flu) then it may extend to workplaces like aged care facilities, early childhood education and/or retail.
Legally, the assessment will be a similar test to approaching a staff member who acquires a disability in a job which requires certain physical attributes. To dismiss them would technically be discrimination. However, if the person is unable to safely perform the job then the dismissal may be justified. Such a dismissal would require extensive consultation and consideration of alternative options within the workplace.
What about new staff?
The situation is a little easier when it comes to hiring new staff. Employers may well want to make vaccination an essential term of employment. In theory employers can include a clause in any new individual employment agreement which requires proof of a vaccination as a pre-condition of employment.
This approach is not without risk. Employers are still bound not to discriminate. If a prospective employee has declined vaccination due to religious beliefs or medical conditions that is something the employer would have to expressly consider when looking at the application.
Two practical steps which employers can take are addressing misinformation and cost. Your staff may be getting inaccurate information online (or at home). If you are encouraging staff to get the vaccine, it would be helpful to refer to official sources of information about safety in plain English.
If your workplace already offers flu jabs, you may also consider offering to fund / subsidise COVID-19 vaccines when that option becomes available. Staff may require time off to get the vaccination/deal with the side effects.
How can we help?
Situations where health and safety conflict with personal rights can be very complex legal issues. The government’s lack of guidance and specificity in its COVID-19 vaccine plan generally leaves it to individual employers to figure out the balance in their own workplace. We are advising employers with varying degrees of exposure and vulnerability about their own vaccination plans. We are happy to help guide you through that process.
WRMK Lawyers has Northland’s largest team of employment law specialists. If you need some help or guidance, please give one of us a call or contact your usual WRMK lawyer for advice.
WRMK Lawyers takes all reasonable care to make sure that the information in this article is up-to-date and accurate at today’s date. It is necessarily general information and not intended as legal advice to be relied upon.
Our thanks to Simon Davies-Colley and Laura Lee for writing this article.