Covid-19 Vaccination Roll Out raises some issues for employers

As New Zealand rolls out its vaccination campaign and distributes the COVID-19 vaccines, how does this affect your staff and impact on health and safety? It also raises some issues around privacy.

Employers are being encouraged to make it easy for employees to get vaccinated by removing any disadvantages such as costs or time off work. For example, employees could get vaccinated during work hours without using annual leave or losing pay or vaccinations might be able to be done inhouse (for larger employers). Information about the vaccinations could also be distributed within your office.

Can I make my employees get vaccinated?

Vaccination is not compulsory. Employers can only require employees to be vaccinated, if their work is covered by a Health Order or if a risk assessment shows that there is a high risk of getting and/or infecting others with COVID-19. There are few types of work in New Zealand where this would apply. However, this could change if there is a significant shift in the COVID-19 situation domestically.

The Customs workers recently fired for refusing the vaccine were covered by the COVID-19 Public Health Response (Vaccinations) Order 2021 which stated that work at New Zealand’s border could only be done by vaccinated workers.

If your business is not covered by a Health Order and you think vaccination might be needed, you can evaluate your COVID- 19 exposure risk by talking to workers and deciding how to minimise or eliminate any risk. The assessment process takes into account the likelihood of employees being exposed and the potential consequences of that exposure on others in the community. This was relevant when a COVID-19 outbreak was discovered in a Christchurch rest home and extra measures had to be taken.

If there is a high likelihood that your employee’s role may expose them to COVID-19 and the consequences would be significant for other people, it is likely the role needs to be performed by a vaccinated person.

What might a Court say?

In New Zealand, the question of mandatory vaccinations has not been raised outside of the order, however if tested in Court relevant factors would be assessing what was “lawful and reasonable”. This will include issues such as the New Zealand Bill of Rights Act 1990 which gives a person a right to refuse ‘medical treatment’ and the risks associated with the business’ activities. Other factors would be the employer’s own risk assessment in accordance with the Health and Safety at Work Act 2015.

A recent decision by the Australian Fair Work Commission (FWC) ruled a dismissal was valid after a teacher in a childcare centre refused the vaccination. The FWC found that the mandatory vaccination was reasonable and lawful and that the teacher’s case for a ‘chemical free lifestyle’ and auto immune disorder was not enough of a basis for medical exemption to the company policy. The dismissal was therefore not unfair.

Employees taking approved annual holidays

The Trans-Tasman and NZ-Cook Islands bubbles allows people to travel quarantine-free between NZ and Australia or NZ and the Cook Islands. This could (and does) change with short notice depending on any new cases of Covid-19 and how they are managed.

For those employees itching to catch up with family or use their annual leave it is their responsibility to stay safe and they need to cover any costs related to travel or imposed managed isolations.

It is worth discussing what to do if your employee gets stuck overseas. Could staff work remotely? If they contract Covid-19, they would be taking sick leave (if available). If they cannot work remotely and do not have enough annual leave to cover an extended stay, then you need to discuss other types of leave such as unpaid leave and how long you can hold their job open. You are not required to pay them if they are unable to work remotely during the extended stay.

Stranded employers cannot automatically be dismissed as you are required to act in good faith to consider some alternatives and follow a fair and proper process before making a decision.

Acting in Good Faith

The team of five million has done a stellar job so far of working together to protect New Zealand and keep each other safe, by playing by the rules and keeping New Zealand relatively Covid free.

Employers have a positive obligation for open and honest communication with their staff about vaccinations, any to changes in work arrangements, any holidays overseas, and any Covid 19 related health and safety measures.