Covid 19 Delta outbreak: Employment lawyer Jennifer Mills on companies' plans for mandatory jabs

Jennifer Mills, principal of Jennifer Mills & Associates. Photo / Supplied

Employment lawyer Jennifer Mills says that, if implemented, Air New Zealand's proposed mandatory vaccination regime will "undoubtedly" be challenged by workers who lose their jobs.

The airline is consulting staff and unions on a plan to introduce its own mandatory vaccine policy for up to 4100 workers who are not covered by Government orders for frontline border staff. A union has raised concerns, saying there don't appear to be enough jobs to redeploy those who don't take the vaccine.

Mills says that while Air New Zealand is not introducing a compulsory vaccination policy (given that staff have the right to refuse vaccination), the company is conducting a risk assessment to determine whether it is safe for a group of workers who fall outside the Government's order to continue in their roles.

"Provided Air New Zealand can justify its decision on health and safety grounds and redeployment has been carefully considered, there could be situations where some employees would justifiably lose their jobs if they remain unvaccinated," she says.

"It is a complex area of the law with many competing interests. There is no bright line test and there will unlikely be a clear answer without litigation in many cases."

Mills says New Zealand courts have not confronted the issue, and it is not clear precisely how they would assess and balance the competing rights and interests.

"It can be argued that Parliament is in a much better position to undertake the necessary risk assessment, and that courts are not the appropriate forum to weigh up competing scientific and social considerations."

The health order

Under the Covid-19 Public Health Response (Vaccinations) Order 2021, certain workers in particular workplaces are required to be vaccinated, in order to continue performing their work.

Specifically, a designated frontline worker must not carry out certain work unless they are vaccinated; and employers must not allow an "affected person" to carry out certain work, unless it is satisfied that person is vaccinated.

Although the order requires certain workers in certain workplaces to be vaccinated, it does not prescribe or specify what happens if a worker refuses or fails to be vaccinated.

That has been left entirely to each individual employer to manage, in accordance with our employment laws, says Mills, in part of a detailed analysis of the issue.

Air New Zealand crew receive their first doses of the Pfizer-BioNtech Covid-19 vaccine. Photo / Supplied

In respect of all other workers (not covered by the order), it is noted that there are no specific laws which prescribe whether and when it would be lawful and reasonable to require workers to be vaccinated.

Rather, employers are required to comply with the Employment Relations Act 2000 (ERA) and the general obligations under the Health and Safety at Work Act 2015.

Right to refuse

Mills says although the Bill of Rights Act is not directly applicable when managing employment relationships, the fundamental rights within it can be influential on the Employment Relations Authority and Employment Court in determining "what a fair and reasonable employer could have done in all the circumstances" under the law.

She says section 11 of the Bill of Rights Act states that everyone has the right to refuse to undergo any medical treatment.

"Although the Bill of Rights Act has limited application to an employer's decision, our common law has long accepted that the consent of a patient was a fundamental prerequisite to any medical treatment."

Employers cannot force or compel any employee to be vaccinated against their will.

However, in a job, the issue is not whether a worker is subjected to involuntary medical treatment, despite their lawful right to refuse. Rather, the issue is whether an employer has good cause to justify its actions (including dismissal) when an employee has not received a vaccination.

Under the ERA, the onus is on the employer to establish that its actions "were what a fair and reasonable employer could have done in all the circumstances at the time".

"In our view, an employee cannot successfully argue that a fair and reasonable employer could not in any circumstances take adverse actions (including dismissal) against an employee who is not vaccinated. When taken to its logical end, such an argument would require the courts to uphold an individual's right to refuse medical treatment, even if the exercise of that right could detrimentally affect the rights or interests of other people," says Mills, who is director of Jennifer Mills & Associates, an employment, health and safety, and immigration law firm based in Auckland,.

The Health and Safety at Work Act requires employers to ensure that the health and safety of all workers, and of other persons, is not put at risk.

"In practice, that means an employer bears the responsibility for the health and safety of its workers, as well as other people who could be put at risk.

"In our view, some employers may determine that certain work or roles must only be performed by vaccinated workers, following a proper risk assessment."

The process

Employees need to be explicitly warned (preferably in writing) and given a reasonable opportunity to reconsider and to get vaccinated, knowing the potential consequences of failing to do so.

Further, employers must engage constructively with the affected employees to maintain the employment relationship and attempt to redeploy or reassign an existing employee to an alternative role, position or location of work, which does not require a vaccinated person to carry out the work.

In the event of a personal grievance claim by the employee, the onus will be on the employer to show it has acted fairly and reasonably, both substantively and procedurally, in all the circumstances at the time.

"There is a significant degree of uncertainty. Until the Employment Court directly confronts this difficult issue, it is not clear how the relevant competing rights and interests would be assessed and balanced,'' says Mills.

That uncertainty will cause most employers to take a conservative approach.

"However, some employers cannot wait for people to be harmed before they take firm actions. By way of example, the aged care sector will be acutely aware of the risk of fatalities caused by the transmission of Covid-19."

When faced with potential fatalities, the issue of workplace vaccination is not just an academic debate, says Mills. It has real potential consequences and a real ability to make a difference in the health and safety of people.

''We consider that an employer may take adverse actions against an employee, including dismissal as a last resort, where it has identified that the employee is not able to carry out certain work / role safely without being vaccinated, following a proper risk assessment. However, there is considerable ambiguity in terms of where the line should be drawn.''