Vaccine mandates - Employment Law Update

New Zealand is in a new phase of its COVID-19 response, with the Delta variant entering the community, and the government strategy shifting away from elimination. There is a sharp focus on vaccinations as the primary means of protection. This poses challenges for employers across the motu, who want to ensure their staff are safe and protected from the virus, and their business is well protected from the potential shocks of a workplace outbreak.

Mandatory vaccine order

Large proportions of the New Zealand workforce are now covered by a mandatory vaccination order, which legally requires our health and disability workers, border workers, correction officers and teachers to be vaccinated in order to perform their roles.

However, most New Zealand workers are not covered by this legal mandate. So what options are available to employers?

Could I implement my own vaccination policy?

The short answer is ‘yes’.

The starting point is that an employer is entitled to introduce lawful and reasonable workplace policies, in accordance with its inherent right to manage its workforce and its duty to take reasonably practicable steps to provide a safe workplace.

In the absence of a legislative mandate that requires your workforce to be vaccinated (or in addition to it), an employer could implement its own vaccination policy; and, if it can establish, on health and safety grounds or some other grounds, that a vaccinated worker must do the work, we consider it is likely an employer could include mandatory vaccination in its policy.

What would a policy include?

A vaccination policy could include:

• when and why an employer may collect information about the vaccination status of its employees, including how it will be stored and used

• the employer’s approach to recruiting for new roles, and whether it will endeavour to recruit vaccinated staff, and, if so, how it will manage that process

• when mandatory vaccination may apply

• if mandatory vaccination will apply, which roles it will apply to, the process the employer will follow for unvaccinated employees, and the timeframes given for obtaining va

• the process that will be followed wherever someone seeks an exemption from vaccination requirements (eg, for medical or other reasons), and the alternatives that will be considered.

What is the process for implementing a policy?

• Consistent with the duties of good faith, employees who will be covered by the policy should be consulted on the policy before it is introduced. This will include:

– advising employees of the reasons the policy is being introduced

– providing employees with any evidence you have relied on. This will include a client directive where that is being relied on, a copy of the mandatory vaccination order or government vaccination certificate requirements if that is the basis, or a copy of any risk assessment that has been carried out if health and safety is the reason for the policy

– seeking employee (and union, where applicable) feedback on the draft policy, especially on the reasons for the introduction of the policy, the parameters of its application, and the consequences of noncompliance with the policy.

I want to include mandatory vaccination in my policy; can I do that?

Where the employee is required to be vaccinated under the mandatory vaccination order, the answer to this is definitely yes, based on the case law to date.

No case law has been established yet on dismissing an employee for refusing to be vaccinated where no applicable mandatory vaccination order is in place. However, we consider it is likely that an employer could still include this in a policy.

Imposing a requirement to be vaccinated in order to carry out work is significant. An employer would need to establish a strong basis to do this, and, like everything in the employment law world, process will be crucial.

The likely reasons an employer could consider including mandatory vaccination would be where:

• a health and safety risk assessment identifies that the work should only be undertaken by a vaccinated employee

• client requirements demand that the business provide fully vaccinated workers

• the employer decides to use COVID-19 vaccine certificates under the proposed traffic light system, that is, if the employer requires its customers to be vaccinated to enable greater freedoms under orange and red levels.

That last category is still an open question, because the government has indicated it intends to legislate or regulate for this group. The expectation is employers in

that group will likely see some government intervention that will guide their approach.

Risk assessment

A risk assessment (needed if mandatory vaccination is being proposed on health and safety grounds) involves asking the question: does the nature of the work pose a sufficient risk of infection and/or transmission of COVID-19 that means it must be undertaken by a vaccinated worker?

When completing a risk assessment, an employer should focus on assessing the role, not the individual. However, employees (and their unions) should have the opportunity to engage and participate in consultation as part of this process.

WorkSafe New Zealand has prepared a list of questions an employer can use when undertaking a risk assessment that focuses on factors such as proximity to others, time spent around other people and ability to contact trace those around you.

An employer can undertake this assessment themselves. Alternatively, some employers may want to consider obtaining external help from a health and safety professional.

Refusal to be vaccinated

If an employer wants to dismiss an employee for not being vaccinated under their Vaccination Policy (or under a Public Health Order), that dismissal has to comply with the usual requirements of the Employment Relations Act 2000. That is, both the reason for the dismissal, and the process used, need to be what a fair and reasonable employer could do in the circumstances.

That will mean ensuring the employee understands the potential outcomes of the process, can be represented if they choose to be, is provided with a reasonable opportunity to address the employer and respond, and their response is listened to and considered by their employer before a decision is made.

Remember, the Human Rights Act 1993 is still applicable. If an individual maintains that they will not get vaccinated on the basis of one of the prohibited grounds of discrimination (such as religious belief or disability), an employer must be more considered about whether or not it can nevertheless accommodate the employee in the workplace.

An employer has specific requirements to consider, depending on which prohibited ground is being claimed, and specific legal advice should be sought in the first instance.

Things to remember

We are continuing to see vaccinations as a sensitive issue, and people on both sides have strongly held beliefs. Employers need to remember that, despite strong differences in views, you need to engage with your employees in a constructive and open manner.

Jack Rainbow Ngāti Tūwharetoa, Te Arawa (Tapuika), is a solicitor at Dundas Street Employment Lawyers. He has been providing advice to major public and private sector employers on the implementation of the vaccine mandate order. Jack also volunteers at Community Law and previously worked at a law firm specialising in Māori legal issues, particularly Waitangi Tribunal claims.