25/08/2021·4 mins to read
Businesses can’t just “require” their staff to get the Covid-19 vaccine
Many employers are now grappling with how to approach Covid-19 vaccinations and their workforce, as New Zealand law does not allow an employer to simply “require” staff members to get vaccinated.
For many (employers and employees alike) the question is academic - employees will just want / decide to get the vaccination. But what about those who refuse? And how do you find out the extent to which your workforce is vaccinated? We answer some key questions below.
Can employees be required to be vaccinated?
If the workplace is border-related or an MIQ facility, where there is an obvious risk of exposure to Covid-19, then the answer is probably “yes”. The government’s COVID-19 Public Health Response (Vaccinations) Order 2021 requires workers at MIQ facilities to be vaccinated and on 14 July 2021 was extended to certain workers at ports and airports. Separate considerations apply for this class of employee.
This is because the risk of a worker being exposed to Covid-19 in the performance of their role is likely to be high, and the consequences to others if that worker were to be exposed to Covid-19 are significant - without the additional control of the vaccine. Such a risk assessment then triggers the responsibility of the employer to take all reasonable steps to reduce that risk. MBIE released guidance on this in April 2021, relating specifically to MIQ workers (“Guidance for engaging with unvaccinated MIQ workers”) but the points will be relevant for other high risk workplaces also.
If there is no significant risk of infection in the workplace, then while employers can “encourage” employees to be vaccinated, actually requiring vaccinations must be justified.
The New Zealand Bill of Rights Act (BORA) is the starting point. The BORA grants all individuals, among other things, the right to refuse medical treatment, which includes being injected with a vaccine. However, given the very real risk Covid-19 presents, there will be circumstances where a requirement to be vaccinated in order to carry out duties may be lawful.
The question of lawfulness will depend on a number of factors specific to the workplace, such as:
What do your employment agreements say (a requirement that a role be undertaken by a vaccinated person will need to be express)?
What risks are you managing in your workplace by seeking to require vaccinations?
If you don’t require vaccinations, are you providing a safe and healthy workplace?
What is the effectiveness of the vaccine versus other control measures for your workplace (masks, sanitising, distancing etc), and are those measures practical to apply in your workplace?
Any further Government directions or guidance in relation to vaccinations for specific industries/sectors?
- What is the prevalence of the virus at the time vaccinations are being required?
If an employer undertook a mandatory vaccination approach it would also need to consider the law on discrimination. Under the Human Rights Act 1993 and the Employment Relations Act 2000, it is unlawful for employers to discriminate against employees, either directly or indirectly, on any of the specified prohibited grounds in those Acts. Within the context of vaccinations, religious belief and disability would be the two prohibited grounds which would create the highest risk of a discrimination claim against an employer who requires all staff to be vaccinated as a condition of attending the workplace.
Can an employee be dismissed if they refuse to be vaccinated?
Any decision to dismiss an employee must meet the test of justification set out in the Employment Relations Act 2000: whether “the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal… occurred.” Crucial to this will be the risk assessment undertaken by the employer (and the other health and safety measures available to it) to determine whether it was fair and reasonable for the employer to (a) require a role to be performed by a vaccinated person; and (b) to dismiss an employee due to their vaccination status. This will require consideration of whether there are alternatives to dismissal (such as temporary or permanent redeployment or variation to duties/responsibilities).
Can an employer require that job applicants be vaccinated?
In relation to prospective employees, it is open to employers to:
Stipulate that being vaccinated against Covid-19 is a pre-requisite for all roles within the employer (or certain roles that pose a higher risk), based upon the risk assessment conducted by the employers.
Ask job applicants to disclose their vaccination status (and/or whether they are willing to become vaccinated) as part of their application for the role. In doing so, employers should clarify that job applicants do not need to disclose their vaccination status but will be deemed to be unvaccinated if they decline to disclose their status. Job applicants should be given the opportunity to provide further information in relation to their vaccination status (ie the opportunity to explain whether this is for religious or medical reasons).
- Decline to offer employment to job applicants who are not vaccinated (or who are not willing to become vaccinated), subject to discrimination considerations. It is unlawful for an employer to refuse or omit to employ a job applicant by reason of any of the prohibited grounds of discrimination, which could be relevant if a job applicant does not wish to become vaccinated for medical or religious reasons.
Can an employer ask existing employees or job applicants whether they are vaccinated?
An employer can ask an employee if they are vaccinated but it cannot compel the employee to disclose their vaccination status. An employer can, however, refuse to allow unvaccinated staff or staff that have not disclosed their vaccination status to work in certain roles, if the employer has completed the necessary risk assessment and found that certain roles must be performed by people who are vaccinated.
Whether an employer can ask a job applicant about their vaccination status depends on the person’s vaccination status being relevant to the role that they are applying for. If vaccination status is not of any relevance to the role (for example, because they would be working remotely and their status would not pose a risk to anyone), then it would likely be a breach of the Privacy Act 2020 to ask the person to disclose their health status.
Special thanks to Kate Tennent for assisting with this article.