The Ministry of Health’s research on potential uptake of the Covid-19 vaccination (in April 2021) showed that there were still 12 percent of the New Zealand population over age 16 who were unlikely to get vaccinated, of which 7.8 percent were actively opposed to it. Potentially, this means approximately one out of every 10 employees will remain unvaccinated.
In answer to the question of whether an employer can make vaccination mandatory, the short response is, no. Section 11 of the New Zealand Bill of Rights Act 1990 (NZBORA) gives every New Zealander the right to refuse medical treatment.
However, whether an employer can make an offer of employment or continued employment contingent on vaccination is another, significantly more complex matter and largely depends on assessing the role the employee will be/is performing, the risk of exposure to Covid-19 of that role and the potential consequences on others that would result from that exposure.
The COVID-19 Public Health Response (Vaccinations) Order 2021, came into force on 14 July.
The Order requires workers performing certain high-risk roles to be vaccinated, and includes border workers, managed isolation and quarantine (MIQ) employees and certain roles that handle items from MIQs, aircraft and ships.
This Order enables an employer to legally require employees to be vaccinated when performing these specified roles.
However, for the rest of the workforce, the requirement to be vaccinated will largely depend on the role they are performing.
For example, Employee A is a care worker in a rest home. Due to the physical nature of the job, social distancing is almost impossible and the consequences of contracting Covid-19 and working with vulnerable, elderly residents could be catastrophic.
Employee B, on the other hand, works at a checkout in a supermarket. Social distancing is possible, given the screens most supermarkets still have in place, and there is nothing to suggest that this person is at a greater risk of exposure to Covid-19 than anyone else working in the retail sector.
Employee A’s role could justifiably require only vaccinated employees to perform it, whereas Employee B’s role does not.
The Health and Safety at Work Act 2015 (HSWA) imposes significant obligations on employers and employees to ensure the identification, elimination and/or management of workplace hazards as far as is “reasonably practicable.”
The latter term requires consideration of the likelihood of the risk, the degree of harm that might result, the potential ways the risk can be managed and the costs of managing the risk, which should not be grossly disproportionate to the actual risk itself.
WorkSafe-issued guidelines on assessing whether individual roles can only be performed by vaccinated employees are available on their website and weigh up, among other things, whether the role poses an increased risk of exposure to Covid-19, and whether the role involves regular contact with vulnerable people (such as those with disabilities and the elderly).
Once a full assessment has been conducted and a role is found to be a role that requires an employee to be vaccinated, then a number of employment processes and procedures need to commence in relation to existing employees.
These are the usual processes employed when making decisions that may impact on the continuation of an employee’s employment.
In a nutshell, employees need to be informed of the proposal (including the reasons) that they need to be vaccinated, given the opportunity to comment/provide feedback on the proposal and need to be informed of the possibility that their employment may be terminated if they refuse to get vaccinated and there are no other suitable redeployment options available to them.
It would be very unwise for any employer to try to impose vaccination on its employees, if they are not performing roles assessed as requiring employees to be vaccinated.
In addition to the s 11 NZBORA right to refuse medical treatment, employees/potential employees who are refusing vaccination due to religious beliefs or disabilities could claim that the refusal to offer them a role, or the proposed termination of their employment, constitutes discrimination on a prohibited ground pursuant to the Human Rights Act 1993 (HRA).
Under the HRA, accommodation for different religious beliefs and those with disabilities must be provided, if it does not cause unreasonable disruption and risk to the business.
In addition to the relevant legislation referred to above, the Privacy Act 2020 also needs to be considered.
Enquiring into an employee/potential employee’s vaccination status would only be deemed justifiable if the role has been correctly assessed as high risk, requiring the employees performing the role to be vaccinated. Where an employee/potential employee refuses to disclose their vaccination status, and the role requires the employee to be vaccinated, then the employer should indicate that the refusal to disclose is being read by the employer that the employee is not vaccinated, and the employee must be informed that the potential outcome of that assumption is termination of the employment relationship or a refusal to offer employment.
