The rolling out of Covid-19 vaccine for the general population over the coming months in this country will no doubt result in some complex employment issues for employers.

It will create unique workplace tensions if employees refuse to work alongside unvaccinated employees, or seek alternative working arrangements to avoid exposure to unvaccinated employees.

The most up to date information suggests that most vaccines are 90% effective in preventing Covid-19 and its transmission.   If this continues to be the official stance then the health and safety argument for vaccination is a strong one.

In short, an employer cannot require its employees to be vaccinated. Under The New Zealand Bill of Rights Act, New Zealanders have the right to refuse medical treatment.

Despite this, WorkSafe New Zealand states that an employer can require a specific role to be performed by a vaccinated person, if a risk assessment shows that there is a high risk of getting or infecting others with Covid-19.  MIQ and frontline workers who are covered by the Covid-19 Health Order can also be required by their employer to be vaccinated.

WorkSafe has released guidance to help employers conduct this risk assessment to determine whether a specific role in the business must be performed by a vaccinated employee. This will include whether alternatives such as PPE, masks, hand sanitiser and distancing can discharge the employer’s health and safety obligations.  An employer must consult with its employees to assess the risk.

In carrying out a risk assessment for exposure to Covid-19, an employer needs to consider two main aspects about a role:

  • the likelihood of employees being exposed to Covid-19 while performing the role; and
  • the potential consequences of that exposure on others (e.g. community spread).

If there’s a high likelihood that the employee performing the role may be exposed to Covid-19 and the consequences would be significant for other people, it’s likely the role needs to be carried out by a vaccinated person.  There are however only a small number of types of work where this would apply in New Zealand.   On this basis, some essential businesses such as food producers and supermarkets would not be able to require vaccination, even though transmission could be catastrophic.

The situation is difficult for existing employees who refuse a vaccine or decline to tell the employer if they are vaccinated or not, where the workplace assessment is that vaccination is necessary to discharge the employer’s health and safety obligations.

Employers are obliged to communicate in good faith with the employees, including listening to the reasons for the refusal to vaccinate and genuinely considering whether there is any way the employee can be accommodated by doing alternative duties or considering if tasks that require vaccination can be postponed.

Some customers or clients may refuse to deal with unvaccinated employees. That may provide justification for an employer redeploying an employee into a lower-risk role, requiring an employee to carry out alternative duties, permanently or for a period of time, or even terminating the employment relationship if, after good faith consultation, alternative duties for the employee cannot be found.

Where an employer is employing a new employee, the situation is simpler. An employer is entitled to include preconditions before agreeing to employ someone. Those conditions can include the requirement for that employee to be vaccinated. However, if reasons given for refusing a vaccine are linked to a religious or ethical belief or medical condition, an employer should be careful before declining to employ a person because they refuse to be vaccinated. The Human Rights Act prevents such discrimination.

All employers, whether they can require vaccination or not, should be starting to formulate a Covid-19 vaccination policy, which can deal directly with the issue of vaccination, and the wider workplace issues that might arise between employees.

Even where an employer does not have the ability to require vaccination, it should consider ways it can encourage vaccination in the workplace, such as providing paid time off to get vaccinated.

In most situations, an employer will not be able to ask an employee if they are vaccinated, or why they are not vaccinated, unless their role justifiably requires vaccination. The same will apply for prospective employees in job interviews.  If an employer knows the vaccination status of an employee (or the reason for that status), they will not be able to disclose that status to any other employee.

With everything employment, there are duties on both sides of the relationship around the unchartered territory of covid vaccinations in the workplace. An employee is obliged to take reasonable care of their own health and safety but is also obliged to comply with any reasonable instruction given by their employer. On the other hand, an employer is obliged to act fairly and reasonably and to communicate with its employees in good faith.

 

Megan Williams

Megan Williams

ddi  + 64 9 553 9232

p  + 64 9 361 5563

e   megan.williams@swlegal.co.nz