Bring on the jab?

‘No jab, no job’ is a hot topic in the current climate. Here, Sherridan Cook and Gabrielle Lintott discuss what employers can, and can’t, do with regard to mandating employees have a Covid vaccination.

The landscape on Covid-19 vaccinations has changed dramatically. As evidenced by the evolving situation in New South Wales, and New Zealand’s latest lockdown restrictions, the health and safety risks associated with the highly infectious Delta variant are more significant than those we faced previously.   

A new game plan for managing the virus has been required. Earlier this year, the Government introduced the Covid-19 Public Health Response (Vaccinations) Order 2021, which mandates that many front-line border workers must not carry out certain work unless vaccinated, but we understand that the Government may be looking to extend the scope of this.  

More recently, the Government implemented new health and safety measures, such as mandatory record-keeping for certain businesses and event organisers, and mandatory face coverings when visiting specified locations and services. 

However, with the elevated health and safety risks, many employers are also considering a new game plan.

Conscious of their legal obligation to ensure the health and safety of their workforce, customers and the community, and in order to prevent future disruption to their business, some employers are:

• Making Covid vaccinations a condition of employment for new employees.

• Educating existing staff about the Covid vaccine and proactively encouraging vaccination. 

• Incentivising existing staff to disclose their vaccination status and/or to get vaccinated, including by paying employees while they get vaccinated or offering rewards, such as an extra day’s leave, gift vouchers or even a cash payment. 

Prospective employees could claim discrimination based on one of the prohibited grounds of discrimination under the Human Rights Act 1993 (primarily either religious belief or disability). 

Existing employees could also claim disadvantage or discrimination where they are not awarded incentives and refuse to get vaccinated based on their ethical or religious beliefs.

However, the heightened health and safety risks, combined with the Government’s push to get as many Kiwis vaccinated as possible, suggests that employers may be justified in taking the above measures.  

 

Mandatory vaccination?

But what about mandatory vaccination for existing employees?  

Ultimately, it comes down to a robust health and safety risk assessment of employees’ roles. This must be undertaken in consultation with the employees (and unions) concerned, and in accordance with WorkSafe New Zealand’s guidance.

If, after a comprehensive assessment it can be demonstrated that there is a significant risk that the employee will be exposed to Covid and there are significant consequences of that exposure on others, and all alternatives (such as amending tasks, redeployment or taking other safety precautions) have been extensively explored, then an employer may be able to conclude that the role needs to be performed by a vaccinated person.

This is consistent with the Employment Relations Authority’s recent finding that New Zealand Customs Service’s dismissal of a border protection officer who declined to be vaccinated was justified.

Having regard to its own health and safety risk assessment, and the Vaccinations Order, Customs insisted the role undertaken by the maritime port worker required them to be vaccinated against Covid.  

The case also exemplifies the importance of adhering to good faith obligations and following a fair process.

Customs provided ample information to the employee, gave them numerous opportunities to respond, consulted on the possible consequences of declining to be vaccinated (including termination) and vigorously pursued alternatives to dismissal. 

At the time of writing (mid-September 2021) the situation remains unclear in respect of roles where there is no clear connection between the existing worker being vaccinated and being able to safely or effectively carry out their role.

However, with the threat of new outbreaks and other Covid variants on the horizon, businesses are able to encourage vaccination whilst also advising that additional requirements, such as regular Covid testing or mandatory vaccination, may be warranted down the track.  

 

Sherridan Cook is a partner at Buddle Findlay and Gabrielle Lintott is a solicitor at the firm.

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