COVID-19 - Can employers require employees to get vaccinated?

“No jab, no job” seems to be the phrase that is circulating in some work industries right now. What is apparent is that COVID-19 has raised many employment law questions, the latest now being whether employers can require employees to get vaccinated. Like many legal questions, the answer is not black and white, but requires consideration of competing legal principles. Ultimately, like most things, the answer will likely depend on the circumstances.

Legal principles

The New Zealand Bill of Rights Act 1990 provides the right to refuse medical treatment.  However, that right is subject to justifiable limitations. Another right contained in the Employment Relations Act 2000 and the Human Rights Act 1993 is to be free from discrimination.  Prohibited grounds of discrimination which could become relevant include disability, sex and pregnancy, and religious or ethical belief. 

Equally significant is the Health and Safety at Work Act 2015 (HSWA), which provides PCBUs and employers with a primary duty to ensure the health and safety of their workers, so far as is reasonably practicable. They are also responsible for the health and safety of people at risk from the work of their business.  This is particularly relevant to those businesses or industries that provide care to vulnerable people, such as the elderly or sick.  More detail on health and safety obligations during COVID-19 can be found in our earlier article: https://www.dtilawyers.co.nz/news-item/coronavirus-covid-19-and-the-workplace-health-and-safety

In relation to mandatory vaccinations, the question will be whether this comes within the meaning of “reasonably practicable” under the HSWA. Keeping in mind that reasonably practicable steps could include implementing controls to eliminate, isolate or minimise exposure to COVID-19.

What this means is that on the one hand, employers/PCBUs have obligations to keep workers and members of the public reasonably safe from harm, but on the other they cannot force people to undergo medical treatment.  So where does this leave us in terms of mandatory vaccinations?

Employment law obligations

The clear theme coming out of the most recent employment law decisions from both the Employment Relations Authority and the Employment Court is that COVID-19 does not change employment law and employers’ legal obligations to their employees.  In essence, you cannot unliterally change terms of employment and consultation of decisions that may affect employee’s terms of employment is still necessary.

When looking at the issue of whether requiring an employee to undergo a COVID-19 vaccination and dismiss, suspend or take disciplinary action if they refuse, the legal test is whether such a decision is what a fair and reasonable employer could have done in all the circumstances at the time the decision was made. This is where the individual circumstances become key and where an answer for one workplace may be different to another.

Relevant circumstances

When determining what a fair and reasonable employer could do when it comes to requiring mandatory testing, the following are circumstances that could be relevant:

• Whether there are cases of community transmission;
• The type of industry – whether it involves aged care facilities, essential medical workers, or any other industry or organisation that cares for people considered “high risk”;
• Whether it is possible to assign employees to alternative duties of lesser risk, such as those duties which do not require face to face contact with other workers or members of the public;
• Whether it is possible for employees to work remotely;
• The impact on an employer’s business of not having all staff vaccinated;
• Whether PPE (personal protective equipment) can be safely used to minimise the risk of transmission;
• Whether there are other processes and precautionary measures that can be utilised to reduce or minimise the risk of exposure;
• Whether the employee has any underlying health condition(s) for which a vaccine is contraindicated.

These are just some circumstances that will be relevant in deciding whether a decision to make vaccinations mandatory for some workplaces is both fair and reasonable and whether an employer could dismiss or take disciplinary action against an employee for refusing to vaccinate. Ultimately, the legalities of attempting mandatory testing are untested and therefore uncertain. What is clear is that until there is either further direction from the Government or until the issue is tested by the Courts, PCBUs and employers will ultimately have to make a call about whether or not mandatory vaccinations may be expected in their workplaces. However, given the conflict with the right to refuse medical treatment, it is likely that employers would be unable to dismiss existing employees who refused to be vaccinated unless there was a real and imminent health and safety risk, which would normally apply to those who worked in a high-risk area.

Concluding comments

Some processes employers could put in place right now include requiring any “new” employees to provide proof of vaccination before an offer of employment can be confirmed. Provided the reason for non-vaccination did not relate to a prohibited ground of discrimination, it could be argued that such a requirement was justified on the basis of health and safety.

Employers could also introduce policies that strongly encourage existing staff to vaccinate and to provide detailed and accurate information about the reasons for taking that position and to provide information on the vaccine itself.  

What we already know based on the most recent employment law decisions is that while COVID-19 may have changed the way in which most of the world lives, here in New Zealand it does not change employment legal obligations. The obligations of good faith are as important now as ever before.   Therefore, in the first instance we encourage employers to talk and consult with staff about vaccinations, rather than trying to enforce mandatory vaccination policies.  There will undoubtedly be workplaces that will make vaccinations mandatory. There will be much public interest to see how those test cases are determined by the Courts.

The specialist employment law team at DTI Lawyers can assist you in relation to all employment matters, including obligations and rights that relate to COVID-19.  You can contact the team on 07 282 0174.