Even with the mandating of the COVID vaccination for many organisations, employers still need to follow a process before deciding to terminate employment. An employer’s good faith obligations remain.
Can Employers Insist on vaccinations ?
With COVID-19 vaccinations becoming available in New Zealand, initially to health and border workers and their families, we are starting to have the conversation with employers about whether or not they can require workers to have a vaccination.
Retirement village and aged care provider Arvida Group, who operate 32 facilities nationwide with about 2500 mainly frontline workers, have said all of their new employees would need to consent to vaccination against Covid-19, as well as the flu.
Air New Zealand, who have been ensuring testing within their workforce, carrying out thousands of nasal swab tests to date, are about to implement saliva testing so that additional monitoring, that doesn’t need to be carried out by healthcare professionals, can occur.
Dr Stephen Grice, Rako’s Chief Science Officer, has said that the saliva test had been successfully validated and accredited (by IANZ) for New Zealand and through regular testing, up to 90% of positive cases were able to be picked up before they started showing symptoms.
And while testing in high-risk sectors may already be well accepted, at present in New Zealand a vaccination is a medical treatment, which requires informed consent under the New Zealand Bill of Rights Act. This would mean that a change to the Act would be required before employers could insist that their current employees have a vaccination.
Also, under the Human Rights Act, some candidates being offered a new role, where proof of vaccination is a term of employment, or current staff being asked to get a vaccination, may claim that the requirement amounts to discrimination or disadvantage e.g. if the new employee’s religious beliefs or a medical condition prevented them from being vaccinated.
Therefore, the employer would need to consider if non-vaccination creates a genuine health and safety risk that couldn’t otherwise be reasonably and practicably managed. This is particularly true if employers were to determine that current employees who are not vaccinated have become a significant risk, even when their business may have continued to operate to date without an increased incidence of positive COVID tests in the workplace or in their local community. Unilateral changes to an employee’s terms or conditions of employment cannot generally occur and may be considered unlawful. However, a further outbreak of COVID-19, increasing the risk profile, could potentially influence whether mandatory vaccinations in certain workplaces or roles may be considered justified.
So, What Can Employers Do?
Firstly, they must continue to apply their health and safety policy and procedures (which might now require review) and meet their Health and Safety at Work Act 2015 obligations, as these apply to COVID-19 as with any other risks at work. They should therefore continue to determine the level of risk and potential significance and consequences of risks. Is there information that can be supplied and are procedures in place for advising staff of what to do if they are feeling unwell? Is Protective Personal Equipment appropriate for this new risk? Employers can encourage existing employees to be vaccinated (as one potential control for the risk) and could consider financially contributing to the cost for them to do so, as many do currently with the annual flu vaccination.
There could be a valid business case for ensuring your workers are protected, both for the continuance of your business, protection of your customers, but also to attract and retain the capability your business needs in a tough labour market. Only where there was a real and imminent health and safety risk might it be determined that an employer could take disciplinary action, possibly even as serious as dismissal, against an employee who has chosen not to be vaccinated, noting we will only know more definitively about this once there is some case law specifically addressing this point. Even if that was possible, the other requirements in that situation would still apply, such as the employer considering whether there are any reasonable alternatives to them taking disciplinary action.
As with most changes we may want to make in the workplace, consultation, and working together with staff, as well as education about the matter, can be much more effective than otherwise looking at how to compel staff to comply with a change.
There are some related considerations too. For example, if staff are not vaccinated and then require time to get a test and wait for results, there could be a significant impact on businesses. At present, the only support available in this circumstance is the Short-Term Absence Payment of $350 per employee tested (Click here to see our article about the Short-Term Absence Payment ).
Further guidance for employers about managing the risk of COVID-19 at work is available on MBIE’s employment website click here.
On MBIE’s employment website (at the above link) you can sign up to receive notification when they release new guidelines about COVID-19 vaccinations and employment.
Other COVID-19 information is available at: