To be or not to be vaccinated is the question, but what's the answer if you don't? Irrespective of where people sit on the spectrum, the question as to whether employers can take action is causing quite the stir in the legal and business communities. So what exactly is the legal framework?
Covid-19 Public Health Response (Vaccinations) Order 2021
In April of this year, the Covid-19 Public Health Response (Vaccinations) Order came into force and its purpose was to prevent, and limit the risk of, the outbreak or spread of Covid-19 by requiring certain work at certain places to be carried out by affected persons who are vaccinated.
The Government has made vaccination mandatory for some workers, namely people working at managed isolation and quarantine facilities, airports, ports and aircraft. The Government is yet to broaden the group to include healthcare workers.
An amendment was made to the exemptions section, stating that people might be exempted from getting vaccinated if they have a particular health condition where a health practitioner can determine it would be inappropriate for the person to do so.
Civil and political rights
In theory, it's possible for the Government to legislate that all workers in all industries must be vaccinated via a public health order. But it would have to be demonstrably justified as it encroaches on a person's right to self-determination.
Specifically, under the Bill of Rights Act every person has the right to refuse to undergo medical treatment, meaning nobody can be compelled to take medication - or get vaccinated - against their will.
For new employees, an employer could impose any reasonable condition during the recruitment process, provided that it's not contrary to the Bill of Rights or Human Rights Act. Namely, whether the requirement discriminates on the grounds of disability or religious belief.
For existing employees, the situation is more complicated. Employers can't terminate employment agreements willy nilly and then there's the issue of privacy. In theory, an employee isn't required to provide any explanation as to whether they intend to get vaccinated. And in the event they do, the information should be confidential.
Health and Safety At Work Act 2015
However, under the Health and Safety At Work Act employers are required to eliminate risks to health and safety, as far as is reasonably practicable. If those risks cannot be eliminated, the employer must take steps to minimise that risk as far as is reasonably practicable.
If employers complete a health and safety risk assessment, they may come to the conclusion that a specific role can only be performed by someone who's vaccinated. The employer in this case would be compelled to request a person's vaccination status.
In this case, employers have to conduct a consultation process not too dissimilar to a restructure as the job requirements have essentially changed.
According to WorkSafe: "businesses and services can also require a specific role be performed by a vaccinated person, if you have done a health and safety risk assessment to support this". In doing so, employers should consider: the likelihood of a worker being exposed to Covid-19 while performing the role; and the potential consequences of that exposure on others.
Mandatory vaccination policies
Any employer wanting to make vaccinations a mandatory requirement would have to ensure that it's lawful and reasonable to direct and employee to be vaccinated, and that the failure of an employee to follow a lawful and reasonable instruction to be vaccinated would put the health and safety of other workers, and other people where the employer owes health and safety obligations at risk.
In other words, the policy needs to be reasonable in the circumstances. And while an employer can't force people to get vaccinated, a refusal to do so - if deemed to be in breach of a lawful and reasonable instruction - may warrant the employee's dismissal.
The Australian 2021 case of Barber v Goodstart Early Learning provides some insight. In the case of the childcare industry, it was decided that the dismissal of an employee who didn't comply with the employer's lawful and reasonable direction to be vaccinated was justified.
The policy was deemed lawful and reasonable in this case because: the employer had statutory duties to ensure the health and safety of its workers and children in its care; and that it wasn't practicable to socially distance in a childcare environment, nor was PPE appropriate.
Other case law of interest
Closer to home, WorkSafe NZ v Rentokil Initial Limited 2016 and Labour v Idea Services Ltd 2008 concerned whether an employer could require a blood test or vaccination for hepatitis B. Questions arose whether both workplaces had failed in their health and safety duties to employees by failing to take all practicable steps to ensure that the employees in question were at risk of contracting the virus.
It was decided in Rentokil that the employer failed to offer screening and/or vaccinations. What's more, the previous health and safety legislation applied, and the risk of infection was primarily to the employee, not society as a whole.
More recently, this month the Employment Relations Authority released its long-awaited determination concerning the Covid-19 Public Health Response (Vaccinations) Order 2021. The case concerned a former employee of the NZ Customs Service who was dismissed after refusing to be vaccinated, along with eight other frontline border staff.
Customs had undertaken a risk assessment and commenced a consultation process in March and discussed redeployment options with the relevant staff. The Order came into force at 11.59pm on April 30. The Employment Relations Authority found that the dismissal was justified, and rejected the employee's argument that their view on vaccination didn't "impact any other person in the workplace".
"I commend Customs for the work they undertook that persuaded an overwhelming majority of its employees to access the vaccine when society is bedevilled by various contentious sources of information on this subject", the decision read.
Ultimately, the Authority has set the scene for how these cases will be conducted. Will we be seeing a spike in personal grievance claims as a result of dubious consultation processes and unfair mandatory vaccination policies? Let's hope not.