Mandatory vaccinations & the law: Will New Zealand follow Australia’s lead on compulsory jabs?

HRD explores the do's and don'ts of vaccination policies

Mandatory vaccinations & the law: Will New Zealand follow Australia’s lead on compulsory jabs?

The explosion of the Delta variant in Australia has thrown up even greater challenges for employers in limitingthe spread of COVID-19. Sites of infection in parts of south-west Sydney have included workplaces like manufacturing sites and logistics companies, and as such, have accelerated the issue of mandatory vaccination policies to protect employees and their loved ones.

As New Zealand deals with its own outbreak of Delta, will businesses follow in the footsteps of organisations across the ditch? So far, only a handful of companies in Australia have publicly announced plans to require employees to have the jab to continue working, but the number is growing.

Qantas will require frontline crew to be vaccinated by mid-November, becoming the second major employer to announce a mandate after the Shepparton based manufacturer SPC took a similar step. Telstra is also now considering mandating the jab for over 8,000 customer facing roles.

Speaking to HRD, Carl Blake, special counsel in DLA Piper’s employment practice, said the New Zealand government has made clear it will not mandate the COVID-19 vaccine for the general public. But within its public health orders, a small number of roles such as those working on the border and in MIQ facilities do now require employees to be vaccinated.

“There is the ability for an employer to undertake a health and safety risk assessment and determine that, its staff, either some or all of its roles, must be performed by someone who has been vaccinated,” Blake said. “The critical thing here is that an employer must undertake the health and safety risk assessment, and WorkSafe has provided guidance as to what employers should consider.”

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The two key points underpinning an assessment are the likelihood of a worker being exposed to COVID-19 while undertaking their role, and the potential consequences of that exposure on the community spread. It’s important to note that the ultra-infectious nature of the Delta strain has exacerbated the risk for some industries. While previously social distancing and PPE was fairly effective in limiting the spread – particularly in workplaces – the situation in Sydney has shown that’s not the case with Delta.

What’s more, New Zealand is taking a hard lined, elimination strategy compared to Australia’s suppression approach. That means the case for arguing the need for mandatory vaccinations within some industries to prevent a similar sized outbreak may in fact be stronger than in Australia. But Blake stressed the bar for employers to legally enforce a mandatory requirement is high.

“Inherently, there is a risk of anyone spreading or contracting COVID-19 in the workplace, but if the other control measures are sufficient to reduce that risk to a normal level, then the employer wouldn't be able to determine that vaccines would be necessary,” he said.

“It’s certainly conceivable that employers in the aged care, childcare or primary health care industries might determine that the work being performed by some or all of its workers is such a high risk of spreading COVID-19 without the vaccine that the employer could determine the staff be vaccinated after a thorough risk assessment.

“But it becomes less clear cut in other industries and we've had a lot of discussion about supermarkets, manufacturing factories and the education sector. We've got the potential balancing act between the existing control measures such as mask wearing and good hygiene practices. Would they be sufficient in those industries without the vaccine? It’s an area yet to be tested.”

Blake said New Zealand will likely take guidance from decisions in Australia’s Fair Work Commission, so HR leaders should keep an eye on the cases as they appear. While New Zealand is making good ground in its fight to keep Auckland’s Delta outbreak contained, the events in Sydney may push employers to move on mandatory policies earlier in a bid to be prepared for the inevitable next outbreak. Like Australia, New Zealand will have to shift the mindset to learning to live with COVID-19 once vaccination rates are high enough.

Can employers require prospective staff to be vaccinated?

Yes, the government has indicated that employers can require a staff member to be vaccinated against COVID-19 as a pre-condition before accepting the job – but again, Blake stressed the employer must be able to show the requirement is inherent to the role after completing a risk assessment.

Auckland Airport has confirmed it will only hire vaccinated staff in future, including non-frontline staff. The airport also brought forward its deadline for existing frontline workers to be vaccinated in response to the Delta outbreak.

Blake warned employers do need to be mindful of the Human Rights Act and be careful not to discriminate against jobseekers. They should consider relocating that individual to a role that doesn’t require vaccination but if that’s not possible, then proving the requirement of vaccination through a thorough risk assessment will likely be a valid defence against a claim of discrimination.

“For example, if someone who has occupational overuse syndrome and was applying for a position as a word processing operator, it would be highly relevant if they have a medical history that would exacerbate the medical condition by performing it,” Blake said. “Using that analogy, if an employer determines that after doing its risk assessment, a role should be undertaken by someone who was vaccinated in order to satisfy the health and safety obligations, then it could legitimately require that only someone who was vaccinated be hired in that role because that's a key requirement.”

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The other important point to remember is that a risk assessment will need to be focused on the role on a case by case basis – rather than industry wide. While a head office employee and an airport worker may both work in the aviation industry, their requirement to be vaccinated may differ wildly. Simply deciding aviation is a high-risk industry is unlikely to be a strong enough justification.

As always, approaching the issue carefully and with a considered plan of action will be the best approach for HR leaders – especially for a topic that is as divisive as vaccines. Many employers have already begun providing staff with paid time off, removing one of the biggest barriers to getting vaccinated.

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