‘No jab, no job’ – Can an employer require vaccination? The latest law

1 Oct 2021
Author: Andrea Twaddle
 

The case of GF v New Zealand Customs Service is the first decision in New Zealand to address the issues of whether an employer can lawfully require that a role is only performed by vaccinated worker, and, whether an employee who is not vaccinated can have their employment terminated on that basis.

The Employment Relations Authority held that an employee of Customs was not unjustifiably dismissed, nor disadvantaged after her employment was ended for not being vaccinated.

This article looks at the decision, and what employers will need to consider in managing vaccination in the workplace. [1]

The Authority’s decision reinforces the importance of vaccination as a key strategy in managing the health and safety risks of Covid-19, the necessity of a thorough health and safety assessment, and good faith consultation with employees.

New Zealand case law – GF v NZ Customs Service

In the case of GF v New Zealand Customs Service, the employee (GF) was employed as a Border Protection Officer at Tauranga’s port.

Customs carried out a comprehensive health and safety risk assessment. This included an analysis based on Ministry of Health advice which concluded that vaccination was a ‘reasonably practical step’. The assessment had been well consulted on with the workforce, including significant information about the vaccine being provided to workers as well as the reason for requiring it, and there was opportunity for workers to raise questions or issues. 

In parallel, the Government issued the Covid-19 Public Health Vaccination Order 2021 (Vaccination Order) which required ‘front line’ border workers to be vaccinated against Covid-19.

Custom’s position was that the role in which GF was employed resulted in her being deemed an ‘affected person’ which fell under the Vaccination Order. The conclusion from its health and safety assessment was that all workers performing that role were required to be vaccinated, because of the risk of exposure to the virus.

GF refused to receive the Covid-19 vaccine, and despite being asked by Customs, she did not provide any reason for that position, other than relying on her rights under the New Zealand Bill of Rights Act. [2] Her representative claimed individual reasoning and circumstances for refusing the Covid-19 vaccination was not relevant. 

Following lengthy consultation, Customs concluded that GF was unwilling to be vaccinated. It explored different work arrangements to mitigate exposure risk, as well as the possibility of working in a different role. Based on geographical location, there were limited or no options within Customs, but Customs offered to approach other agencies to identify job opportunities. Ultimately, there not being agreement to an alternative, GF was dismissed from her role on the day the Vaccination Order came into effect.

GF challenged Custom’s decision to dismiss her, and its process to reach that decision. She alleged that there were not health and safety reasons that could justify requiring the role to be vaccinated. Customs defended its decision on the basis that the employment of GF was justifiably ended once the Vaccination Order came into effect. It argued that prior to the Vaccination Order, it had conducted a thorough health and safety risk assessment and determined on legitimate and reasonable grounds that workers in the role were required to be vaccinated.

The Employment Relations Authority found in favour of Customs, ruling that its actions were those that a fair and reasonable employer could take in all the circumstances. [3]



Guidance for workplaces

This case is the first of its kind to be determined by the Employment Relations Authority and care should be taken not to over-reach when applying the judgment. However, it provides clear guidance for employers considering whether to introduce a requirement that a worker in a particular position be vaccinated.

An employer will need to:

Meet its obligations as a Person Conducting a Business or Undertaking (PCBU) under the Health and Safety at Work Act and undertake thorough and genuine health and safety risk assessment, including consultation with its workers.

When undertaking a risk assessment, WorkSafe guidance recommends that employers take into account two factors: the likelihood of a worker being exposed to Covid-19 while performing the role; and the potential consequences of that exposure. If there is high risk associated with these factors, an employer will have greater justification to require that employees who perform the work be vaccinated.

Under the Employer Relations Act, an employer must follow a fair and reasonable process in its actions with an employee. This includes:

  • Undertaking a sufficient investigation, which will include giving an employee a fair opportunity to explain the reasons that he/she may be declining to become vaccinated, while acknowledging their right to refuse under the New Zealand Bill of Rights Act. In the case of GF, she declined the opportunity to provide information, therefore her lack of engagement put Customs in the position that it could not take her views into account. However, it can be expected that issues of concern are properly identified before a decision to dismiss is made. It is important to remember that good faith is a dual obligation owed by both employers and employees. In the circumstances, it would have been prudent for GF to provide reasons for her opposition to being vaccinated.
  • The employer providing all relevant information about its proposed decision around the requirement to be vaccinated, including how it applies for particular roles, i.e. this will involve providing the comprehensive health and safety assessment and how it applies, for feedback. An employee must be given a reasonable opportunity to provide responses, which must be genuinely considered by the employer before making any decisions.
  • All alternatives must be considered before an employer makes any decision to dismiss, and these should be discussed with the potentially affected employee having an opportunity to engage.


The decision to require a role to be undertaken by a person who is vaccinated is a complex issue, with competing statutory rights and obligations.  While the Authority’s determination into Custom’s decision upheld the dismissal of GF as justified in all the circumstances, not all jobs will involve border control with high health and safety risk arising from Covid-19 exposure/risk, nor mandatory requirement for vaccination under a Vaccination Order. [4] Accordingly, in these environments, there will be greater uncertainty. [5] 

This case reinforces that employment law obligations should not be downplayed in uncertain times, including this Covid-19 pandemic.


This case also highlights the importance of sound expertise in managing these processes, with the Authority highlighting the “impressive review conducted with clear logic and close regard for legislative obligations and consultation with relevant employee representatives.” The specialist employment law team at DTI Lawyers is well experienced in relation to managing obligations and rights that relate to Covid-19. You can contact the team on 07 282 0174.





 

[1] This article does not cover the broader issues of privacy rights, or the balancing of health and safety considerations and human rights, which are noted in earlier articles including: https://www.dtilawyers.co.nz/news-item/covid-19-can-employers-require-employees-to-get-vaccinated
[2] The Bill of Rights Act provisions apply only to public sector activities; i.e. acts done by the Government of New Zealand through its legislation, executive and judiciary, or to any person pursuing any public function, power or duty. This does not prevent the Act from being persuasive, but cannot be relied on by workers in a private sector organisation and seeking to resist an employer's decision to encourage vaccination of its workforce. In respect of the Human Rights Act, employers cannot discriminate based on a prohibited ground of discrimination, including disability, sex and pregnancy, and religious or ethical belief.
[3] This case has been challenged to the Employment Court. As matters involving Covid-19 continue to evolve, we will keep you up to date with the latest in the law and how to apply it.
[3] In a recent case “Employees” v Attorney-General, the Chief Judge of the Employment Court struck out a statement of claim filed in the Employment Court that focused on the validity and lawfulness of the Mandatory Order. The Court found the claim to be fundamentally flawed on two grounds: (1) The Court has limited jurisdiction to consider a judicial application for the Order, and this did not extend to inquiry into the validity of an Order made by a Minister under another Act, on the basis of some connection to an employment relationship. (2) The Employment Relations Act limits claims for termination of employment to a personal grievance or breach of contract claim, not judicial review. Claims may only be commenced in the Employment Relations Authority.
[5] The MBIE website states that businesses can require that certain work must only be done by vaccinated workers, where there is high risk of contracting and transmitting Covid-19 to others. This will be the minority of cases. While this website has no statutory authority, it is indicative of the need for a full health and safety assessment before decisions of this nature are made. Ongoing risk assessment will be required as the transmission of Covid-19 changes and therefore risk shifts.

Back
 
 
‘No jab, no job’ – Can an employer require vaccination? The latest law
About the Author
Andrea Twaddle
Andrea is an experienced specialist employment lawyer and Director at DTI Lawyers. She advises on contentious and non-contentious employment law issues, including privacy, and health and safety matters. Andrea is AWI-CH qualified, and undertakes complex workplace investigations. She is a former Council Member at the WBOP District Branch of the Law Society, and Coordinator of the WBOP Employment Law Committee. Andrea is a regular commentator on employment law issues and is frequently sought as a presenter at client and industry seminars, as well as for the provision of advice to other lawyers, professional advisors and leadership teams. You can contact Andrea at andrea@dtilawyers.co.nz