Employers are damned if they do, damned if they don't
By Edwin Morrison, managing director, K3 Legal
The ‘no vaccine, no work’ stance is gaining momentum in other parts of the world. Will that fly in New Zealand under the current law?
The short answer is, “no it won’t” - not at the moment at least, unless you get the employees’ consent which needs to be done in the usual fair consultation process required with consent.
To add insult to injury, employers could face potential disadvantage claims from employees worried about coming back to a workplace with staff and clients who are not fully vaccinated, so an employer is damned if they do and damned if they don’t, as matters now stand.
- If an employer adopts a hard-line mandatory vaccination programme, which restricts unvaccinated persons from remaining employed or in the workplace, then this may potentially result in claims from employees of unjustified dismissal or disadvantage if their ongoing employment is ended or they think it is adversely affected. If their refusal is related to grounds protected from discrimination (e.g. religion or disability) then they may also bring a claim in defamation. Even with legislation in support of a hard-line requirement for vaccine’s an employee took a claim to the authority, but was unsuccessful in those circumstances. Refer to GF v New Zealand Customs Service [2021] NZERA 382.
- On the other hand, if an employer does not require its workforce to be vaccinated, then there is a risk that some employees may claim this means their workplace is unsafe and raise a potential claim for a failure to provide a safe workplace (e.g. a claim for unjustified disadvantage).
People have the right to refuse medical treatment such as vaccines. A person’s vaccination status is personal information which is protected by the Privacy Act 2020, so it is critical for an employer to seek this information with care so as to not inadvertently breach these are other legal issues that can throw a spanner in the works if an employer does not proceed carefully.
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The solution is simple. The government has a duty to respond to and get out in front of this for business and make it lawful for business to adopt a hard-line mandatory vaccination programme, subject to exception on medical grounds. Livelihoods matter.
There is precedent for this. The government has already legally adopted this approach with border workers under section 11 of the COVID-19 Public Health Response Act 2020. In fact, unhelpfully, guidance from government sources such as Employment New Zealand and WorkSafe reiterate the risks of trying to rush to impose a blanket mandatory vaccination policy.
Imagine the disruption to your business if 50% of your workforce becomes sick with Covid and the impact on morale and productivity/know how. The business disruption could be catastrophic at a time when jobs matter.
Until the government acts, at the moment the only practical steps available to employers are:
- Conduct a formal health and safety risk assessment of the workplace and roles, focused on the risks posed by COVID-19, the steps that can be taken to minimise the risks posed by the virus and its spread, and incorporate vaccination as a control mechanism into this. There is some guidance on WorkSafe’s website about this, and we can assist with this as well – the objective is to have a proper record for showing why (or why not) certain roles/workplaces would require vaccinations for health and safety reasons. This could then be used as the basis for next steps to be taken;
- Consult with all employees to gauge their views on adopting a mandatory vaccination policy – ideally this would be done formally together with providing the reasons why the employer is considering such a move (i.e. the health and safety risk assessment for particular roles/workplaces, as well as information about the benefits of vaccines). However, for a small workforce this may be able to be done informally at first to see if everyone is on board – and if so a less-formal process may suffice
- If the employer wishes to implement a mandatory vaccination policy and faces resistance from some employees, then they should proceed carefully in undertaking the consultation process before making any decisions around their employment
- If the employer wishes to make vaccination mandatory for new hires, then their recruitment processes and documents will also need to be amended to cover this off and sufficiently explain the reason why (from a health and safety perspective) vaccinations are required and why therefore applicants are being asked to confirm their status. This should also make it clear that an answer is not required, but that a failure to respond will be interpreted by the employer as meaning the applicant is not vaccinated.
- Be ready to be flexible to accommodate any changes required as a result of new government or court guidance
As with all employment matters start with the question “what would a reasonable employer do in the circumstances”. So each work place will be different and each workplace must be considered. This is not a one size fits all situation.
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