Can you really be fired for not getting the jab? Bay employment lawyer answers questions on workplace vaccinations

Holland Beckett Law employment lawyer Christie McGregor. Photo / Supplied

How should an employer deal with vaccinated staff not wanting to work alongside unvaccinated staff? Can you really be fired for not getting the jab? What are the rules for new unvaccinated employees wanting a job? Reporter Zoe Hunter asks Bay of Plenty employment lawyer Christie McGregor what the legalities are around workplace vaccinations.

In layman's terms, what is the basic legal framework around workplace vaccinations?

In the absence of a legal requirement/justified health and safety need, employers can't simply impose a vaccination requirement on their employees or dismiss their employees for failing/refusing to be vaccinated. The choice of whether to be vaccinated or not is an individual one and employees have the right to choose to be vaccinated or not. However, if there is a valid legal/justified health and safety requirement for the person performing the role to be vaccinated, then a failure to do so may result in an employee's employment being terminated (assuming there is no exemption from the requirement available, or the employee is not able to be redeployed to an alternative role where vaccination is not required).

Requiring a role be done only by a vaccinated employee may be justified where:

The employee's role is covered by the Government's compulsory vaccination mandate and there is no exemption available. Currently, this applies to certain border workers.

However, the Government has announced that this will extend to cover certain education and health workers by the start of 2022; and where, after undertaking a health and safety risk assessment of the role and risks in relation to Covid, the employer determines that vaccination is a required measure in order for the role to be performed safely (this is a more difficult requirement to impose and advice should be sought).

Implementing the above will still require good-faith communication and employee engagement, especially if relying on health and safety grounds. Where vaccination is a mandatory requirement, set timeframes will apply for administration of the first and second vaccine, after which the employee will not be able to perform work without being vaccinated. There might be exemptions to this requirement in the detail of the Order, for example through a medical exemption process. Further information is awaited following the announcement on the detail.

There may also be circumstances where an employer is unable to satisfy its contractual requirements if its employee is not vaccinated, and this may require the employer to take steps to address. For example, if the employer sells food to a party which requires that all workers involved in the food production process are fully vaccinated. Advice should be sought in dealing with the contract partner and employees in that case.

There is generally also a distinction in dealing with existing versus new employees. For new employees, it is easier to communicate a justified vaccination requirement for a role and to impose this as a condition of employment (to be vaccinated and to continue to maintain vaccinated status (including any required boosters).

We advise careful communications with employees, the sharing of information around vaccination requirements and/or health and safety concerns and engaging in good faith, notifying of any necessary timeframes that apply.

What stories are you hearing re: employers facing challenges among vaccinated/unvaccinated staff?

We have had a number of enquiries from employers around vaccination and dealing with vaccinated and unvaccinated staff. They range from enquiries around what information they can require from employees and share in relation to their vaccination status (e.g. having a register of vaccination status), what to do with employees who don't feel comfortable working at the employer's premises with unvaccinated employees, to interpreting and enforcing the compulsory vaccination requirements.

For many employers, the extension of the compulsory vaccination mandate as announced last night will have an impact. There will be a need to determine whether the roles they have will be covered by the proposed extended Order and a need for careful communication and planning to ensure that the vaccination timeframes are able to be met (or if the employees covered decline vaccination, consider what alternatives might be available). At this stage, the extension roughly is as follows:

· It applies to anyone carrying out high-risk work in the health and disability sector – including GPs, pharmacists, community health nurses, midwives, paramedics and all healthcare workers in sites where vulnerable patients are treated. It is also likely to include workers in aged residential care, home and community support services, kaupapa Māori health providers and non-government organisations who provide health services; and
· It also applies to staff of all primary and secondary schools, kura, and all early learning services and providers who may have contact with children. The Minister said this will include all home-based educators, and all support people in schools and early learning services "such as teacher-aides, administration and maintenance staff and contractors".

Health and disability sector workers caught by the new mandate will need to receive their first dose of the vaccine by October 30, 2021, and their second no later than December 1, 2021.

Staff in the education sector covered by the new requirement will need to receive their first dose by November 15, and their second by January 1, 2022. The Minister has said those who are not fully vaccinated in the period leading up to January 1, 2022, will also be required to undergo weekly Covid-19 testing.

Assuming the Government follows the model currently applicable to border workers, anyone starting in newly affected roles after October 30 or November 15, 2021 (depending on which sector they are in), will likely need to have received one dose of the vaccine before starting in that role, and their second within seven weeks of their first.

Can employers be retrospectively sued by employees for their vaccination stance to avoid any employment law issues later down the line?

If an employer causes an employee disadvantage, or terminates an employee's employment due to their vaccination status, the employee has 90 days from the date of such action to raise a personal grievance. The most obvious example of this would be if an employee's employment is terminated due to a failure to be vaccinated as required by the Border Order. A disadvantage could arise, for example, if an employee is prevented from working in a certain area of the business and has certain benefits removed due to a failure to vaccinate, or if an employee's personal vaccination status is unlawfully shared by the employer and they are treated differently as a result. There are other potential claims that could also be made under the Privacy Act and/or Human Rights Act.

Many employers are remaining neutral with regards to vaccination requirements (while being encouraging of vaccination), and are only taking steps where a legal, health and safety or contractual requirement means the vaccination of certain employees is necessary. A 'no jab no job' policy is certainly risky, especially if not justified in relation to all affected roles performed.

No jab? No job. What are the rules with new employees/employers versus the rules for existing employees?

As mentioned above, ordinary employment law rules continue to apply despite the pandemic. Employers can't simply impose a blanket vaccination requirement on existing staff without a justifiable need (e.g. a legal or health and safety requirement). Good faith consultation should be entered into before any vaccination requirements are imposed, and advice sought.

With new employees, however, provided vaccination is a reasonable requirement of the role, employers may make vaccination a requirement of the job. Employers should be cautious, however, not to discriminate against those who are unvaccinated because of health status (for example, if a valid health condition means vaccination is not possible, and other measures can be taken to keep the employee safe). Careful engagement (without being intrusive) is recommended.

What is your advice for employers facing challenges among vaccinated and unvaccinated staff in the workplace? How does this advice differ for smaller businesses and larger companies in the Bay?

The basic principle remains the same for all employers: determine the basis for any vaccination requirement, engage with affected employees in relation to that, including any necessary timeframes for vaccination, and carefully consider who is covered and who is not. Seek advice where needed, as these are challenging times and, in some ways, this is unchartered territory. There is very limited case law on compulsory vaccination at present.

For smaller employers with limited resources, this can be a challenging process, especially if staff views are polarised. We advise seeking help where needed and exercising care before taking steps that may impact employees, especially if considering terminating employment.

Larger employers will have more resources, with dedicated HR to assist in employee communications. They are also more likely to deal with unions, who we have generally found to be engaging on the topic and observant of government requirements.

What is your advice for employees not wanting to work alongside unvaccinated staff?

Employees owe their employers duties of good faith, just like their employers owe them. If they have concerns about working alongside unvaccinated colleagues, they should reach out to their employer to make these clear. It might be that through engagement concerns can be remedied, such as whether PPE can be issued, or working patterns changed, to reduce any perceived risks.

In your opinion, why is it important for employers to encourage vaccinations in the workplace and how should they go about it?

Most employers are engaging with their staff around vaccination and are encouraging them to choose to be vaccinated. Some employers are encouraging vaccination by offering monetary incentives, raffles and/or time off to be vaccinated. Additionally, some are offering paid discretionary leave to recover if the employee requires this after vaccination, and doctor visits for information sessions and/or paid doctor's consultations to discuss any vaccination-related concerns that they may have. We consider that these are a good idea, provided employers are careful with their messaging and comply with Privacy Act obligations around the personal data they collect.

For employers where vaccination is a mandatory requirement, this is a more sensitive topic. While vaccination can also be encouraged, there are consequences for failing to vaccinate (unless a valid exemption applies). In that case, other than being encouraging of vaccination and engaging around any concerns employees have, consideration should be given to any alternatives that may exist if an employee can't or won't be vaccinated, for example, redeployment.