Vaccination tensions set to hit workplaces

Can an employer require employees to have the jab?

Vaccination tensions set to hit workplaces

by AJ Lodge, employment specialist, Anderson Lloyd

As New Zealand widens its vaccination programme, employers are starting to consider how they will deal with the next COVID-19 spanner in the work(place) – vaccinations.

The most pressing question: can an employer require its employees to be vaccinated?

The answer is a straightforward “yes” for those MIQ and frontline workers who are covered by the Covid-19 Public Health Response (Vaccinations) Order 2021. Nine employees have already lost their jobs for refusing vaccination because of the Government mandated Order. Some of those nine are taking a claim to the Employment Relations Authority in the next few weeks, backed in part by public crowdfunding. I don’t like their chances of success.

The answer is more complex for other high-risk workplaces such as rest homes, which are not covered by the health order. In some cases, these workplaces can impose policies that require vaccination for particular roles. One of New Zealand’s largest rest home companies, Arvida, has already implemented a policy that means new hires must agree to vaccinations due to the obvious risk to frail residents.

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Then there’s the rest of us. It is uncharted territory for workplaces where there is no ‘frontline’ aspect to our work or underlying health imperative for everyone to be vaccinated. In the coming months, employers will take their first steps on the tightrope between vaccinated and unvaccinated employees, and are likely to face a number of challenges.

The Ministry of Business, Innovation and Employment has said that where there is a high risk of contracting and transmitting Covid-19 to others, businesses can require that certain work must only be done by vaccinated workers. It says that this will be a minority of all work in New Zealand.

On that basis, it seems that other essential businesses such as meat, fruit and vegetable producers, steel manufacturers, and supermarkets would not be able to require vaccination, even though transmission amongst essential workforces could be catastrophic for a business, as well as our economy.

Where an employer believes it falls into this category, a health and safety risk assessment must be undertaken in consultation with workers, unions, and other representatives. 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 worker.

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 from a mixed-vaccination status workplace. 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.

Recent UK data suggests vaccine hesitancy is decreasing, with the latest figures suggesting only 7% will refuse the vaccine. In the US about 25% will refuse vaccination, while in Australia nearly a third will refuse vaccination.

In New Zealand, April figures signal 23 per cent are unlikely to or will refuse to get the jab. While not all 23 per cent will be in employment, that still suggests a significant number of employees will refuse vaccination. Some employees will refuse vaccination for medical or religious reasons, while others hold strong views or concern about potential long-term side effects.

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This will create unique workplace tensions such as workers who refuse to work alongside unvaccinated workers, or who seek alternative working arrangements to avoid exposure to unvaccinated workers.

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 other employees.

In 2021 the Covid-19-related work in our employment practice continues to be primarily restructures – businesses that made it through the lockdowns, but now realise they need to make significant changes to their structure to adapt to and thrive in the “new normal”. However, we are now preparing for new Covid-19 driven activity; employers dealing with vaccinations, and the challenges that will come with a mixed vaccination-status workforce.

At my law firm, we have introduced a new policy relating to vaccinations, the main purpose of which is to educate and encourage vaccination by providing information and support for those wanting to get vaccinated. Successfully navigating the complexity of a post-Covid employment environment will require better preparation by employers, with some thought given in advance to how best they can support their workplace and navigate any vaccination-related challenges.

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