Vaccination issues in employment

Every day at the moment, we are dealing with vaccination issues and queries relating to employment. In most employment situations this is a tricky area of the law with no real legal or case law guidance.

The whole issue creates a largely unresolved clash between laws concerning privacy, the right to refuse medical treatment, health and safety, human rights/non-discrimination, and general employment law. Unless the Government legislates to make some of these issues legally clear, they will likely end up being resolved by Employment Relations Authority, Employment Court, and higher Court decisions which could take months or years to come through the system. In the limited areas where the Government has legislated for mandatory vaccination of certain workers, the legal Order mandating vaccination requires careful interpretation and analysis and is not always 100% clear. Currently, the Government has legislated for mandatory vaccination for MIQ workers and some border, airport and port workers. On 11 October 2021, it announced mandatory vaccination for workers in the health and education workforces, and on 22 October, it published the amendment Order to clarify the details and create the legal mandate. This amendment came into effect on 25 October 2021.

The Government has announced that it will be developing more legal guidance on vaccination certificates (apparently to be released in the coming weeks). Hopefully this will provide some more clarity for employers, in particular whether it will be lawful to mandate vaccination for workers through the requirement of vaccination certificates or through some other legal mechanism. What remains critical, is for employers to fully engage in consultation with their employees regarding any health and safety risk assessments for mandatory vaccination for positions within a workplace, and to try and reach agreement with them (if at all possible) as to how the employers intend to manage vaccination issues. Pending hopefully more legal clarity, we recommend that employers do not make any rash decisions, where possible take a ‘wait and see’ approach, and seek legal advice before taking any actions. This of course excludes employers in the education and health sectors, many of whom we are currently helping to assess and comply with the pending vaccination legal mandate.

The legal Order mandating vaccination requires careful interpretation and analysis and is not always 100% clear.

Below is a link to the Employment New Zealand Government website information on vaccination in employment. This is not legal advice but does provide some general guidance: www.employment.govt.nz/leave-and-holidays/ other-types-of-leave/coronavirus-workplace/ covid-19-vaccination-and-employment/

Danny Jacobson and Trudy Marshall are Partners at Employment Lawyers Tauranga and they specialise exclusively in employment law. They operate our Employment Helpline for NZCB members: phone 07 928 0529 for 10 minutes free advice on any employment related issue. (The above is by its nature general, and is not intended to be a substitute for legal advice.)