Employment

No Jab? No Job

March, 2021

By: Persia Templeton

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The COVID-19 vaccination is currently one of the most hotly debated topics in New Zealand. There is a lot of confusion around an employer’s ability to offer employment or terminate existing employment on the basis of whether or not an applicant/employee has had the vaccination. There are also questions around whether they can even ask the question and if the applicant/employee must answer.

This article details the facts and the current legal position in New Zealand around vaccination and employment.

Vaccination and the Bill of Rights

‘Vaccination’ is classed as a form of medical treatment, which all New Zealand citizens, residents and visitors have the right to decline. This is covered in section 11 of the Bill of Rights Act 1990.

So, what does that mean for an employer in terms of both recruitment and managing existing staff in light of this pandemic?

For new employees

An employer may require new applicants to provide proof of vaccination prior to offering employment. However, this must:

  • Be relevant to the role being applied for (i.e., as a legitimate health and safety risk); and
  • Be subject to consideration of whether such requirement may unlawfully discriminate against someone who declines vaccination on particular grounds, provided for under section 21 of the Human Rights Act 1993.

Grounds under section 21 may include, but are not limited to; gender, pregnancy, religious belief, ethical belief, and/or disability.

There is one exception to this question of discrimination, namely, whether a decision to proceed to hire despite a declined request for vaccination (or evidence of) would pose an unreasonable risk to the employer’s operations.

As part of this assessment, an employer must also consider whether a refusal to be vaccinated (or provide evidence of vaccination) will pose a health and safety risk that the employer cannot reasonably accommodate. If the answer is that they cannot, then it may be possibly to legally discriminate in accordance with the Human Rights Act 1993. However, if an employer can take reasonable measures to reduce the risk of the degree of harm to a “normal” level, it is unlikely that this will meet the required threshold to permit discrimination in these circumstances.  Of course, what is a “normal” level will be open for debate to a degree.

While the above may seem like an ‘easy’ exception to apply, in reality this will require a detailed health and safety assessment and it is likely that a majority of New Zealand employers will not meet this threshold.  The concept of an unacceptable risk is to be measured objectively, and this is more likely to fit the category of an employer who operates almost entirely in a COVID-19 high risk sector which presents an imminent risk of harm (for example, aged care facilities) – and even in these categories, we do not have clear case law or legislation yet.

The summary for new hires is this: subject to an assessment of relevance to the role and any risk as to discrimination as set out above, an employer may be able to decline to hire a new employee if employment is subject to proof of vaccination and they refuse to provide it. If there is a possible issue of discrimination, an employer may still be able to proceed with their decision, subject to an assessment as to whether hiring such new applicant will pose an unacceptable health and safety risk, which cannot be reasonably accommodated.  This will always require a case-by-case assessment.  

For existing employees:

For people already employed, it is extremely unlikely that they can have their employment altered or terminated for declining vaccination due to the legal protections that exist in terms of employment law.

That said, the question on everyone’s minds is whether the position is the same for particular categories of employer who work in high-risk sectors? In these sectors there may be cases to be made if the health and safety risks are severe. In such circumstances it may be possible for an employer to consider taking serious action if an employee is not vaccinated and/or refuses to provide such information, and there is no other alternative other than to consider redeployment, altering terms of employment, or ultimately, termination.

To add a further complication, as the Ministry of Innovation, Business and Employment (MBIE) has recently stated on its Employment New Zealand website, “workers do not have to tell their employer if they have been vaccinated or why they are unable or choose not to be vaccinated”.

This is correct and in reality an employee cannot be forced to disclose such information because it is subject to the Privacy Act 2020 – which comes with its own (at times, complex) considerations for employers. This of course adds a further complication as to whether an employer can then proceed to take any action without knowing for sure whether someone has been vaccinate. In these circumstances, there may be an ability for an employer to act on the assumption that an employee is not vaccinated, however the employee must be advised and the matter must be handled carefully (ideally with professional advice).  

In general, termination of employment for refusing to be vaccinated is at high risk of being found to be an unjustified dismissal. It may be possible to alter someone’s terms of employment, for example, by redeploying them into another role on a temporary or permanent basis, but this would require a fair consultation process and current law would most likely require their agreement. Further, such changes may not be appropriate in many circumstances– again, this will be a case-by-case situation, which will require undertaking a thorough health and safety risk assessment and should be considered with professional advice.   

Concluding comments and suggestions

When assessing the potential impact of the above issues on your business, our suggestion is to start with these ‘big picture’ considerations:

  • What in reality has or will change the risk profile of a particular role in your business, post the COVID-19 vaccination roll out?
  • How does the COVID-19 vaccine rollout compare with the influenza vaccination programme in New Zealand (for which there is also no ability to enforce vaccination or require disclosure of the same, and from which hundreds of people die from every year)?
  • What practical and proactive steps can you take now to get ‘ahead’ of the issues as much as possible?

It is important to realise that the rollout of the COVID-19 vaccine does not alter anything in current New Zealand employment law.  It is equally important to take stock of the fact that many New Zealand businesses have continued to operate without a vaccine over the past year. This is a relevant consideration in any case to be made that an applicant/employee may have their employment status altered for declining to be vaccinated/provide proof of vaccination.

It will be very easy for some employers to ‘jump the gun’ on these issues, and many employers may be under the mistaken impression that they can unilaterally alter existing employment and reshape a job on the concept of the unreasonable and/or unacceptable “risk”, without having a clear understanding of what “risk” means in this context and the threshold to be met. Being too quick to take such action could mean a very costly personal grievance win for an employee in the Employment Relations Authority. Equally, a misstep in the hiring process as above could mean a successful claim in the Human Rights Review Tribunal for a breach of the Human Rights Act on the basis of unlawful discrimination.

We are yet to see case law (and/or legislation) which provides us with clear guidance as to the ability to alter the terms of someone’s employment based on a rejected vaccination request/instruction (or information request), let alone termination of employment on this basis.

Some practical ‘best practice’ steps employers can take now may include:

  • Providing training and awareness programmes for staff.
  • Encourage staff and their families to be vaccinated.
  • Record those who are vaccinated and consent to have this recorded.
  • Paid time away from work to be vaccinated without impacting sick leave entitlements.
  • Fairly considering those who cannot or will not get vaccinated in a sensible and practicable manner.
  • Support for annual COVID-19 and influenza vaccinations.

In terms of the more specific issues with particular roles, we suggest ensuring that you are clear on what are your business needs in respect of vaccination, what health and safety risks are relevant to your business and/or roles within your business (and the severity of these), and then discuss options with a professional advisor and how to implement them. As part of that conversation, some of the questions for discussion may include the following:   

  • Whether a job can be reshaped with an employee’s agreement so that the duties being undertaken reduce any unacceptable risk.
  • Whether redeployment is a possible option for certain employees.
  • Whether an employee can temporarily work from an alternative location i.e., home.
  • Whether termination may be possible.
  • How to prepare and implement the required documents for pre-employment requiring proof of vaccination.
  • For those who will be vaccinated – how will the business address the five-week period between the initial injection of the vaccine and anticipated immunity?[1] (i.e. will that person be expected/able to work);

To discuss any of the above in more detail and/or concerns you may have regarding how COVID-19 impacts your business, please contact the legal team on 09 367 0994, or alternatively; our adviceline on 0800 300 362.

[1] The New Zealand Ministry of Health website advises that the current vaccination protocols require an initial injection followed by second injection three weeks later; any degree of protection only then applies a further two weeks after the second injection. Accordingly, there is a five-week period before someone is anticipated to be immune (complete immunity has not been stated to be a definite result by the Ministry).

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