Employment

Employment Law and COVID-19 Vaccinations

September, 2021

By: Persia Templeton

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Employment Law and COVID-19 Vaccinations

Vaccination for the Covid-19 virus has been a key focus for employers for several months now and there has been a lot of confusion around the topic, with mixed advice from various sources and a muddling of the categories of employees who are impacted.

This article seeks to provide a concise summary of the core information that employers should understand around vaccinations in the workplace.

The basics

Vaccination is legally considered medical treatment in New Zealand, which by its very nature means that all New Zealand citizens have the right to refuse it (s11 NZ Bill of Rights Act 1990). Our Government can ‘override’ this in limited circumstances pursuant to section 5 of the Act, which provides that “…. rights and freedoms may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.  The Government has recently exercised this right by a series of Public Health Orders issued under the Health Act 1956; these cover very limited categories of worker (e.g. border workers). To date, there has been no indication the Government intends to further engage section 5 and introduce additional orders which go beyond the limited categories currently addressed.

In respect of COVID-19 vaccinations there are three main categories of employees:

  1. Those subject to the COVID-19 Public Health Response (Vaccinations) Order 2021 (“the Order”)
  2. Current employees who may require vaccination due to health and safety concerns.
  3. Future employees/applicants.

Those subject to the COVID-19 Public Health Response (Vaccinations) Order 2021 (“the Order”)

 The Order legally mandates that employers of particular workers (namely, MIQ and frontline staff) require those in relevant roles to be vaccinated. As has been widely publicised, a number of such employees who have refused vaccination have had their employment terminated and one of them had their case heard in the Employment Relations Authority, which we discuss further in this article.

Current employees who may require vaccination due to health and safety concerns.

 This category is more complex and has arguably caused the most confusion. Unfortunately, we do not have any test case law around this category yet, further reducing the absolute certainty of the legal position. The starting point is that the employer must undertake a health and safety assessment to ascertain the degree of risk with respect of having non-vaccinated workers in certain roles. This assessment would be part of a thorough consultation process (carried out in line with existing New Zealand employment law requirements), and would take into account the nature of the workplace as well (i.e. a rest home will be at higher risk than a standard office environment).

Pursuant to current New Zealand law, it is highly unlikely that anyone who does not fall into a high-risk category could have vaccination made into a mandatory requirement of their employment. The bottom line is there is currently no legislation or case law addressing this directly, so implementing a ‘blanket’ policy around vaccinations could increase the risk of personal grievances. On the other hand, a policy that encourages, supports and educates around vaccination is an excellent idea and certainly something which all employers should consider.

It is crucial to keep in mind (and to remind ourselves after two years of lockdowns), that regardless of the impacts of COVID-19, employment law in New Zealand has not changed. On that basis, regardless of the reason for altering or terminating someone’s employment, all of the standard procedural and justification requirements remain. Employers must act in good faith, and ultimately seek to make decisions that are fair and reasonable in all the circumstances at the relevant time. This applies to all categories of employees.

Future employees/applicants

For new employees, it is not as difficult to mandate vaccination. The simplest way to incorporate it as a pre-employment requirement, and/or to include it as part of a questionnaire for employment. Although this is less restrictive, it does not remove the requirement to ensure that such information/requirement is directly relevant to the role being applied for.  In other words, the requirement to be vaccinated should be linked to a serious threat of harm to the employee and those they will be working with and around, if they were not vaccinated. It is also important to be aware of the risk of (likely inadvertent) discrimination, should someone be refusing to be vaccinated or provide information around vaccination based on religion for example. 

Case law – the Covid-19 Public Health Response (Vaccinations) Order 2021

 In the decision of GF v New Zealand Customs Service [2021] NZERA 382, the Employment Relations Authority (“the Authority”) heard a claim from an employee who had been dismissed by the by New Zealand Customs Service (“Customs”) for failing to vaccinate against Covid-19. The decision specifically addresses the reliance by an employer on the Government mandated order requiring vaccination in certain roles (note, this decision does not therefore address other categories of employee regarding vaccination).

GF had been employed as a maritime border protection officer in late 2020. Their employment was specifically focused on supporting the increased demand of such officers responding to the risk of Covid-19 entering New Zealand, and “…to meet additional requirements of the Covid-19 Public Health  Response (Maritime Border)Order 2020, which is a temporary order”.

On 8 April 2021, the Prime Minister publicly announced that “front line border workers” (including at ports) were required to be vaccinated or if they refused, to alternatively be moved into “low risk” roles by 12 April. Concurrently, it was announced that the Covid-19 Public Health Response (Vaccinations) Order 2021 (“the Order”) would come into effect at 11:59 pm, 30 April 2021. The order confirmed the Prime Minister’s prior declaration (among other elements). Following the 8 April announcement, Customs promptly began to consult with the relevant impacted employees, which included GF.  This consultation included a health and safety risk assessment for the work being done by the employees, to establish whether they could safely continue such work if they were unvaccinated. Following the consultation process and the impending Order coming into force, Customs concluded that its Tier 1 workers could not continue working in their roles unless vaccinated – this included GF.

GF declined vaccination under protest, citing their right to refuse medical treatment pursuant to section 11 of Bill of Rights Act 1990. Customs subsequently terminated GF’s employment on 30 April, and relied on the Order, the health and safety assessment applied during consultation, and finally, an inability to sufficiently adjust the role to permit GF to remain employed, unvaccinated.

The Authority determined that the termination was justified as Customs’ actions were what a fair and reasonable employer could have done in all the circumstances at the time, specifically:

  • What Customs had done and had every right to do in law and the prevailing circumstances, was determine the position GF occupied could only be safely undertaken by a vaccinated worker;
  • Customs as a public agency had a clear responsibility to be guided by government directives to ensure public safety and public confidence in its operations;
  • While Customs had some limited leeway to categorise its employees as being covered by the vaccination requirement, Customs carried out this categorisation exercise carefully and fortuitously prior to the order being enacted they had undertaken the necessary work to put in place a structured and logical approach to dealing with employees reluctant to be vaccinated;
  • Alternatives to dismissal were vigorously pursued by Customs but GF was employed in a position that was already temporary in a geographical area of few opportunities and by definition in an ‘above establishment’ role;
  • GF’s lack of experience in other specialist roles Customs require worked against easy redeployment and GF did not constructively engage with Customs when it was becoming obvious that GF’s stance on being vaccinated would restrict employment prospects;
  • Good faith ‘runs both ways’ as a mutual obligation and GF failed to engage with her employer to properly apprise them of any practical as opposed to evident philosophical objections to accessing the vaccine.

The decision provides guidance as to the application of the Order to certain roles and outlines the procedural requirements which are discussed earlier in this article. Namely:

  • Every employee’s circumstance in this context must be assessed on their own facts prior to making any decisions in respect of their employment and vaccination status. There is no ‘one size fits all’, and such approach would be unwise.
  • The Order, applied correctly, ultimately provides justification for termination of employment, subject to genuine assessment of reasonable redeployment possibilities.
  • An appropriate health and safety assessment must be applied prior to any decision to terminate or alter employment in respect of a role which must be carried out by a vaccinated worker.
  • The requirement to consult in good faith remains, regardless of what the Order may ultimately permit.

Conclusion

Vaccinations in the workplace and COVID-19 creates complex issues that are new in many respects.  To even consider mandating vaccination in the workplace, an employer would have to be able to establish that it is lawful to direct a particular employee to be vaccinated (based on the role they occupy and the work they do i.e. specific tasks), and that the failure to follow a lawful and reasonable instruction to be vaccinated would put the health and safety of the employer’s workers and other persons to whom the employer owes health and safety obligations (i.e., customers, clients) at risk. Each decision will require a case-by-case analysis, and accordingly will be fact specific, considering the nature of the work being done and industry to which it relates.

With no case law or legislation directly addressing these issues, the above tests themselves are not formally enshrined in law and there is an inherent risk in taking such actions. Until further authoritative guidance is provided, employers should proceed with caution and seek the appropriate professional advice before proposing to take any significant actions around vaccinations.

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