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Can employers make it mandatory for workers to be vaccinated? This is one of the difficult questions lawyers and HR teams are grappling with as the prospect of living alongside the virus becomes more of a reality. This article co-authored by Bhavika Singh & Mattie Smith.
Time to read: 4 mins
While the latest lockdown has boosted momentum in the vaccine rollout, the government is not making vaccination mandatory for the general public, relying instead on good faith and voluntary cooperation. So how can employers mitigate the health risk that unvaccinated workers may have on the workforce, and can compulsory vaccination be justified in certain circumstances?
We have watched from afar as some US corporates made vaccination mandatory for workers returning to the office with the slogan ‘no jab, no job’, while in the UK there is still debate over the legitimacy of introducing such measures.
Currently in New Zealand it is only mandatory to be vaccinated if you work in border roles, or managed isolation and quarantine facilities. The government has been very decisive when it comes to these groups, but in the context of the wider workforce, it is not as clear cut.
Employers have a responsibility to maintain a safe working environment for all staff under the Health and Safety at Work Act, and the majority would agree that the vaccine is currently the best means to do this. However, making vaccinations a condition of employment can only be done if employers are not being discriminatory towards people’s religious beliefs or medical conditions, as protected by the Human Rights Act, or breaching the Bill of Rights Act, which protects the right to refuse medical treatment.
There are subtle differences when it comes to current employees and new employees. It has been made clear that existing employees cannot be dismissed due to their vaccine status, and where vaccination is a requirement for their role and they prefer not to be vaccinated, alternative arrangements must be considered. In short, an employer cannot force their current staff to have the vaccine.
When it comes to new hires, employers will have to tread carefully. Workplace Relations and Safety Minister Michael Wood has indicated that it may be possible to include vaccination as a condition in future employment agreements with some employment lawyers saying it may not be deemed discriminatory. Their view is it is ultimately the candidate’s choice to agree to the conditions of the employment offer or not. This is however unchartered territory, and the general legal stance is that you should have a robust health and safety risk assessment proving the risk of Covid-19 exposure as a basis for your decision.
Worksafe provides guidance on how to assess whether a role needs to be performed by a vaccinated person or not. They suggest careful consideration of two factors: the likelihood of Covid-19 exposure while performing the role, and the potential consequences of that on others.
This guidance can be interpreted in a number of different ways and is inconclusive for employers. Many may consider staff working in close proximity in shared office space as high exposure, and if community cases become the norm any customer or client facing roles could also fall into this group.
Auckland International Airport is testing the waters. According to media sources, the Airport has made it mandatory for all current frontline staff and all new hires to be vaccinated. The requirement for vaccination will form part of their standard terms of employment for new hires.
Across the ditch, Qantas and Virgin Australia are requiring all employees to be vaccinated, and Air New Zealand may be soon to follow in these footsteps for front line staff. Air New Zealand is currently consulting with its workers about a proposal to make the vaccine mandatory for around 4000 employees, approximately half of its workforce, with a final decision to be made by the company shortly. Many will be closely watching how this develops.
The reality is that vaccination may eventually become as much a necessity for employment as it is inevitably becoming for international travel. While the companies mentioned above are moving to make vaccination mandatory for some, or all of their workforce, the legality of this remains untested in the courts. Until this becomes clear, our best advice is to continue to encourage vaccination, and keep track where possible of vaccination numbers in your workforce.
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