No jab, no job? Covid-19 vaccine rollout
I wrote my last blog on vaccines in the workplace back in March this year, roll on 6 months later and much has changed….. Delta is now in the community, Auckland has been in lockdown for over 4 weeks, and businesses are more anxious than ever about the need to protect their people, customers, suppliers and the general public.
We are aware of many businesses, especially those in the construction industry being asked by customers or site operators, for only vaccinated employees to attend site. It’s fair to say we all get the feeling, the request for vaccinated employees, is going to become more and more common.
We get that vaccines play a critical role in reducing the risk of Covid-19 infection and transmission. But, is it legal to mandate the vaccine in your workplace?
My answer remains unchanged, from that back in March. No - legally, you cannot mandate the vaccine in your workplace, but it may be government mandated under Order (see below). The starting point is that the vaccine is a medical treatment, and under the New Zealand Bill of Rights Act, this requires informed consent by the employee.
The COVID-19 Public Health Response (Vaccinations) Order 2021 requires all work in MIQ settings to be carried out by workers who have been vaccinated against COVID-19. A recent Employment Authority case, GF v New Zealand Customs Service [2021] NZERA 382, upheld a decision to dismiss a border worker who refused to be vaccinated despite the Public Order.
Although New Zealand Customs Service was able to rely on the Public Order, some other considerations by the Employment Authority to justify and uphold the dismissal included; the extensive risk assessment that had been undertaken by the employer, thorough consultation, genuine consideration of the employees reasoning, and exploring all other options (i.e. alternative duties, leave) before deciding to dismiss the employee.
What about the Health and Safety risks?
As an employer you have obligations under the Health and Safety at Work Act 2015, these would extend to minimising the risks of Covid-19 within your workplace.
Businesses can require that a specific position be performed by a vaccinated person, only if following a proper risk assessment, the work is deemed high risk. You must have first done a health and safety risk assessment to support such a requirement and involved your team, union etc in the risk assessment process. Just because a site deems that only vaccinated people may attend, does not make it immediately high risk, you must do your own assessment. To carry out a risk assessment for exposure to COVID-19 you need to consider two main things about the role:
the likelihood of a workers being exposed to COVID-19 while performing the role, and
the potential consequences of that exposure on others (e.g. community spread).
You should also consider whether other public health measures (eg physical distancing, PPE usage) can minimise the risk of exposure and transmission of COVID-19. For support with undertaking a risk assessment, see the Worksafe resources here.
Any such process must be fair and reasonable, and carried out in good faith following proper consultation. Employment law still applies, if employees are doing work that can only be done by a vaccinated worker, but are not vaccinated, you will need to address any practical barriers to accessing vaccination (eg if travel or time off work is needed).
You should also consider options, such as changing work arrangements, alternative duties or leave. If leave is used, this must be agreed, and we encourage this be paid. You may agree to a negotiated end of employment, but individual dismissals are unlikely to be justifiable in almost all cases, based on current circumstances and guidance. You can negotiate with your Employees’ variations to existing conditions of employment to require vaccination.
You can require vaccination as a condition for new Employees, but this must be reasonable for the position. Employers must follow good faith processes and consult regarding any changes.
Requesting proof of vaccination status
We understand you may require your employees vaccination status to ensure you send vaccinated employees where requested, to certain jobs or sites. Your employees do not have a duty to tell you, if they have been vaccinated or their reasons should they choose not to be vaccinated.
You can ask employees if they have been vaccinated, although the employee does not have to disclose this. If they will not tell you what their vaccination status is, you may assume your employees are unvaccinated, but should first inform employees of this assumption.
If your employees disclose vaccination details to you, you must protect this personal information about their vaccination status and cannot share it without the employees written consent. Collecting, storing and sharing information about people’s vaccination status must be done in accordance with the Privacy Act.
We have some awesome template letters and emails we can customise up to support you with the vaccine roll out, and seeking disclosure of your employees vaccine status. Contact our team on our details below to grab a copy.
Incentivising employees to get vaccinated
Of course, you can encourage your team to get vaccinated including by allowing them paid time off to attend to a vaccine clinic during work hours. We are aware some businesses are incentivising their staff by paying bonuses, or gifting vouchers to encourage getting the vaccine - on the surface this seems like a great idea, but ethically people need to make their own decision about their personal medical treatment, not be swayed to make a decision by others, nor do you want to be seen to be disadvantaging those who for their own reasons choose not to.
Short answer
So short answer - no, you cannot mandate the vaccine in the workplace, but if following a safety assessment you deem a position high risk for Covid-19 exposure, then you can follow a fair and proper process, including thorough consultation, to make the vaccine a requirement of the position. If you are seeking proof of your teams vaccination status, they are not required to provide this to you, and if they do you must keep this information secure.
We are here to help guide you through your workplace vaccine roll out, so give us a call on 0800 HR FOR U.
Paige Hellier
ER & Legal Consultant