Taupō Legal Corner: Can my employer fire me if I am unvaccinated?

The Covid-19 Public Health Response (Vaccinations) Order 2021 requires Covid-19 vaccinations for groups of certain people. Photo / Getty Images

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Opinion:

If your work is covered by a government vaccination mandate and alternative work that can be done under that mandate cannot be found for you, then your employer can fire you if you are unvaccinated.

However, there are rules around this and exceptions.

The main government mandate is the Covid-19 Public Health Response (Vaccinations) Order 2021. This mandate requires Covid-19 vaccinations for groups of certain people. Currently, these groups include particular people working at quarantine facilities, airports, health practitioners, corrections facilities and others.

There used to be another law that mandated all NZ Police and New Zealand Defence Force workers. However, in February 2022, Frontline Law successfully sued the Government in the High Court, and this mandate now no longer exists. Teachers also used to be mandated under the Vaccinations Order. However, this requirement was removed in April.

Before an employer can fire staff, they must prove that the role comes under a government vaccine mandate. Sometimes this is straightforward, often it is not.

Also, there is a range of exceptions to government mandates. For example, if you tested positive for Covid-19 after May 16, 2022, you will be exempt from the Vaccinations Order for 100 days after testing positive.

If you are an employee, your employer must exhaust all other reasonable alternatives before firing you. Therefore, if you can work from home, or in a way that complies with the government mandate, your employer may not be able to fire you.

If you are not covered by a government vaccine mandate, your workplace may still be able to fire you if you are unvaccinated. However, this would need to be done in compliance with both health and safety laws and employment laws.

To do this, an employer would need to complete a risk assessment analysis of your role, in accordance with health and safety legislation. The result of this assessment would need to show that your role would be significantly affected by your not being vaccinated, and that no reasonable alternative working arrangements are possible.

They would need to consider what controls could mitigate any risks. The ultimate test will be whether firing you because you are unvaccinated is something that a fair and reasonable employer can do in the circumstances.

However, due to the vaccine's reduced effectiveness against preventing the transmission of Omicron, it is harder for employers to justify firing employees for not being vaccinated if they are not covered by a government mandate.

The laws surrounding Covid-19 vaccine mandates change frequently. If you are unsure if you can fire someone, or are unsure about what your rights are, speak to an employment law expert.