COVID-19: Can employers in NZ force employees to be vaccinated?

The aviation industry worldwide is pinning its hopes on a vaccine

COVID-19: Can employers in NZ force employees to be vaccinated?

The aviation industry could pose an interesting test case around an employer’s ability to mandate vaccinations against COVID-19.

 

Qantas boss Alan Joyce recently suggested all passengers wanting to fly internationally with the carrier will have to prove they have been vaccinated.

 

He said Qantas is looking to include mandatory vaccinations in its terms and conditions for customers, but it prompts questions as to how the company will handle the situation for its employees.

 

It’s clear widespread vaccination rollouts could be the answer the aviation needs to kickstart international operations.

Air NZ told HRD that the company has been encouraged by the news of a vaccine rollout in the UK.

“Our Chief Medical Officer Dr Ben Johnston talks regularly with colleagues at other airlines and is a member of the IATA Medical Advisory Group,” an Air NZ spokesperson said.

“This group is active in proposing guidelines for how to get international travel moving again in a safe way.

“Ultimately, it’s up to governments to determine when and how it is safe to reopen borders and we continue to work closely with authorities on this.”

But while asking passengers to prove they have been vaccinated is one thing, mandating immunisations for staff is a trickier issue.

Read more: Should CEOs be vaccinated before employees?

HRD spoke to Hamish Kynaston, partner at law firm Buddle Findlay, about where employers stand on mandatory vaccinations.

“An employer, particularly those in certain sectors like aged care, might say if you’re going to work here, you’re going to need to be vaccinated,” he said.

“An employee would have a right to decline to do that but the employer in that instance, if their direction was a reasonable and lawful one, might be able to dismiss the employee after considering redeployment or other management options.”

To avoid an unfair dismissal claim, an employer would have to prove that a vaccination is a reasonable health and safety measure.

It would have to assess the genuine health risk of an employee who was not vaccinated and whether there was a greater risk of them becoming infected than someone working in an office, for example.

An employer would also have to show it considered other redeployment options in the business and make sure the employee was fully consulted throughout the process.

“A business needs really clear policies in place to explain the reasons behind the need for a vaccination and give the employee an opportunity to feedback on that policy,” Kynaston said.

In certain sectors like healthcare, aged care and frontline emergency responders, practitioners say vaccinations could very well be considered a reasonable health and safety measure.

The grounds become a little less clear for a business where it could be argued vaccinations are necessary solely for profit.

Read more: COVID-19: What are employers’ legal obligations?

However, Kynaston pointed out that in the aviation industry, employers could argue a vaccination is a health and safety measure to prevent employees from becoming infected by overseas travellers.

If for example the plane landed in a country where the vaccination was not widely available, even if passengers had to prove they were COVID-free, there would still be a risk to employees in the airport or a hotel if they needed to stay overnight before a return flight.

“It will be fascinating in the aviation industry. An employer might say in order for us to keep you safe, you need to be vaccinated,” he said.

“Coming into contact with international travellers is a potential justification but it’s certainly not as crystal clear as looking after a vulnerable patient.”

An employer would also need to argue why a vaccination is necessary rather than the use of personal protection equipment (PPE).

Saying it’s “not as effective” may not be enough of a justification when it comes to dismissing an employee, Kynaston said.

Mandatory vaccinations were being discussed in New Zealand last year after the measles outbreak, with some arguing the country should follow California’s lead in making vaccinations compulsory for children.

Vaccinations against diseases like flu and Hep B are already recommended for primary healthcare workers in NZ.

In terms of how an employer might implement mandatory vaccinations, Kynaston said it could be rolled out as a policy, rather than written into individual employment contracts.

He likened it to drug and alcohol policies that are common among many businesses.

It’s likely over the next 12 months, businesses and HR leaders will be forced to make decisions on their policy around vaccinations which could then be tested in court.

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