Rights and obligations around employee vaccination

The Government’s recently announced Covid-19 Protection Framework details a Traffic Light system to help manage outbreaks and cases.

Vaccine Certificates will be required in sectors such as hospitality and in close-contact businesses. In conjunction with this, the Government will mandate that vaccination is required for all workers in such businesses. The Vaccine Certificates will allow businesses to continue to open and operate at Red, Orange and Green levels.

However if a business does not hold a Vaccination Certificate, restrictions will apply at all levels. Close-contact businesses, such as gyms, will not be able to operate without a Vaccination Certificate at levels Orange and Red.

There will also be a process to require vaccinations within the Primary Sector workforce in situations where these are needed for market access purposes. There is mounting pressure on the Government to mandate vaccinations for a number of other sectors, such as Police and construction.

Prior to these announcements the Government had already mandated vaccinations for border workers. That mandate was unsuccessfully challenged in the High Court. The Employment Relations Authority has also upheld several dismissals of border workers.

The Vaccination Certificates and mandate for all workers in such business to be vaccinated will provide a degree of clarity. However businesses will still need to conduct a proper analysis of whether their particular business requires a Vaccination Certificate.

The Government also intends to introduce a clearer and simplified risk assessment process for employers to follow when deciding whether they can require vaccination for different types of work. This will not override risk assessments already completed by businesses.

WorkSafe NZ’s current guidance focuses on the nature of the work itself presenting a risk of Covid-19 infection and transmission greater than the risk faced outside work. WorkSafe NZ also advises that the focus in any risk assessment must be on the role and the work being done, rather than the individual performing the role.

The Health and Safety At Work Act requires businesses to minimise risks to health and safety, so far as is reasonably practicable. That duty extends to workers and other persons entering the workplace. Already a number of businesses have signalled that they will not allow unvaccinated persons into their workplace. That is consistent with the duty to minimise the risk to workers.

WorkSafe’s focus on ‘‘the role and the work’’ is limiting. The role and work itself may not pose any particular risk, but working alongside an unvaccinated colleague certainly may. An employer, arguably, has an obligation to minimise that risk. If sanitising, distancing and mask-wearing don’t sufficiently minimise the risk, then vaccination may be required.

Non-vaccinated workers requiring vaccination will be given a new four-week notice period to get vaccinated before employment can be terminated. This notice must be paid. The law will override employment agreements with shorter or no notice periods.

Employers will need to provide paid time off for workers to get vaccinated and will need to keep records about workers’ vaccination status.

The Government’s indications are that Vaccination Certificates will be required by about 40% of businesses. By singling out businesses that will require a Vaccination Certificate, it may be argued that other businesses (by omission) do not require a vaccinated workforce.

The simplified risk assessment process the Government has promised may also signal which businesses can discharge their health and safety obligations without a fully vaccinated workforce.

The law and guidance is moving extremely rapidly. Initial Governmental guidance was that you could not ask your workers whether or not they were vaccinated. It’s now largely accepted that workers can be asked where there is a genuine health and safety purpose.

To date the focus has been on health and safety, but commercial and workplace cultural considerations may also provide a legitimate basis for requiring vaccination. Workers who are anxious about catching the virus from unvaccinated co-workers, particularly where those workers are at higher risk of the effects of Covid-19, must be considered. Mental health is equally as important as physical health. Where customers refuse to do business with non-vaccinated businesses, this may well lead to restructuring and, ultimately, redundancies.

With ongoing business pressure, it is likely that there will be further legislation mandating a vaccinated workforce for other sectors. However these mandates do not remove an employer’s obligations to its employees. An employer must continue to consult with its employees in good faith about any policies it wishes to implement. This includes not only health and safety policies but also policies based on culture or commerciality. An employer will also need to consider redeployment options before terminating the employment of an unvaccinated worker.

It is important to remember that the anxiety Covid-19 brings, affects both employers and employees what is required is both a human and a humane response.

 - Disclaimer: The opinions expressed in this article are those of the writer and do not purport to be specific legal or professional advice John Farrow is a litigation partner with Dunedin law firm Anderson Lloyd.

 

 

 

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