With a rather significant portion of New Zealanders (about one in four) expressing reservations about the COVID-19 vaccination, employers have had to turn their minds to a sticky legal question: can they insist on employees getting vaccinated?
The short answer is highly unlikely. The New Zealand Bill of Rights Act 1990 sets out an individual’s right to refuse to undergo medical treatment, and vaccinations are considered medical treatment. Employers therefore cannot force existing employees to get vaccinated.
The Government recently confirmed its position that employers cannot require an individual to be vaccinated but they can require a specific role to be performed by a vaccinated person after undertaking a health and safety risk assessment. If an employer were to insist on vaccinations, an employee may raise a personal grievance for an unjustifiable disadvantage and potentially discrimination if the employee had a religious or disability related reason for refusing to be vaccinated, for example. If the insistence led to the employee’s dismissal, or their resignation, the employee may also raise a personal grievance for an unjustifiable dismissal.
Overall, there will be very few circumstances where a dismissal based on a refusal to vaccinate will be considered justifiable particularly where the assessment of risk to health and safety is low.
There is little doubt that vaccination will become the most effective line of defence in the fight against COVID-19.
Whilst the borders remain closed, and community transmission is relatively contained, the focus for employers should be on continuing to follow the recommended means of minimising the spread of the virus (by social distancing, regular hand washing, staying home whilst unwell) and, depending on the nature of your workforce, beginning to talk to them about the benefits of herd immunity and enabling and facilitating them to be vaccinated when the time comes.
Those employers who operate within a particularly high risk industry should carry out a risk assessment to identify whether there is genuinely a need to have employees vaccinated in your workplace. If you deem it to be necessary for particular roles to have vaccinated employees:
- Ensure all discussions are carried out in accordance with good faith obligations;
- Consider implementing variations to an employee’s position if an employee is not vaccinated or refuses to get vaccinated. We can assist with advice on the consultation processes and implementing change in this regard;
- With new employees, consider requiring vaccination as a condition of employment (noting that some employees will have religious or health related reasons for refusing).