Vaccinations in the workplace

New Zealand’s current approach to the COVID-19 pandemic is to stick with its elimination strategy for as long as it takes to achieve a safe level of the population to be vaccinated.  But in the absence of a Health Order making vaccinations mandatory for all New Zealanders, the Government has effectively thrown the vaccination hot potato to employers who are left juggling the complex matters of ethics, human rights, misinformation and employment law.  Employers clearly play a key role in supporting New Zealand’s wide-spread vaccination campaign.  But the key question is, how far can they go?

General guidance

It seems unlikely that employers may require mandatory vaccinations in the workplace without a good health and safety reason.  Employment NZ had said that employers cannot require individuals to be vaccinated, however, they can require that certain work may only be done by vaccinated workers where there is a high risk of contracting and transmitting COVID-19.  Employers must therefore assess their COVID-19 exposure risk to decide whether certain work warrants a vaccination for health and safety reasons.  This risk assessment process must involve workers, unions and other representatives and consider whether the risk may be eliminated, or if this is not reasonably practicable, if the risk can be minimised in other ways.

Making vaccinations mandatory in the workplace

Recently, two major employers have publicly shared their stances on making COVID-19 vaccinations compulsory at their workplaces.

Air New Zealand has proposed to implement a workplace policy creating a mandatory vaccination requirement for all staff who interact with customers or their baggage, and workers required to enter the workplace if they cannot work from home (roughly 4000 roles).  Around 2300 Air New Zealand workers were already covered by the Government’s mandatory COVID-19 Public Health Response (Vaccinations) Order 2021 (Order).  Air New Zealand is applying a similar approach to Qantas, Jet Star and Virgin Airlines, in requiring employees to be vaccinated.

Auckland International Airport also introduced a new policy requiring all of its front-line workers to be vaccinated by 31 August 2021, one month ahead of the Government’s mandatory vaccination order direction, and for all new employees including non-front-line roles to be vaccinated.  The Airport has not yet made vaccinations compulsory for all existing staff but the company has indicated that this may change in the future.  Three frontline workers who elected to not be vaccinated have reportedly been suspended on pay as they could not continue their roles unvaccinated, and may be redeployed elsewhere in the company.

In line with Employment NZ advice, a recent case GF v New Zealand Customs Service (previously named GF v OO) supports the position that employers are likely to be justified in terminating the employment of an employee who has refused to be vaccinated if the employer has carried out a thorough health and safety assessment that finds that the employee’s role requires a vaccinated person to fulfill it, and this is necessary for the employer to comply with its obligations under health and safety legislation.  The employer must of course comply with all other employment law obligations.

In GF, New Zealand Customs Service (NZCS) argued that the termination of GF’s employment was justified as NZCS’s health and safety risk assessment had determined that GF’s role required her to be vaccinated in order for NZCS to meet its statutory obligations.  NZCS alternatively argued that GF’s employment was legitimately brought to an end when the Order came into effect as it required certain ‘front-line’ border workers to be vaccinated in order to continue being employed at border facilities.

The Authority Member found that NZCS was justified in dismissing GF in both cases.  Firstly, GF’s role fell within the scope of the Order and NZCS had followed a proper process in consulting with GF regarding the implications of the Order, including providing ample information on the reasons why there was a requirement that the role be vaccinated, the consequences if she declined, and the alternatives to dismissal including redeployment.

Secondly, NZCS’s health and safety review “… was an impressive review conducted with clear logic and close regard for legislative obligations and consultation with relevant employee representatives.”  The individual risk factors for GF’s role were clearly identified, plausible (based on recent events) and applied to GF’s role “in convincing terms”.  Accordingly, “…what Customs had done and had every right to do in law and the prevailing circumstances, was determine the position GF occupied could only be safely undertaken by a vaccinated worker”.

Mandatory vaccinations via Health Orders challenged

Under the Order, vaccines are mandatory for specified workers, including most border workers (a group that has recently been expanded by an amendment to the Order), and workers at Managed Isolation and Quarantine facilities.  Additionally, if those specified workers were not vaccinated by 26 August 2021, they could face dismissal.

In a recent case “Employees” v Attorney-General, Chief Judge Christina Inglis struck out a statement of claim filed in the Employment Court that focused on the validity and lawfulness of the Order.  Inglis CJ found the claim was “fundamentally flawed” for two reasons:

  1. The Employment Court only has limited jurisdiction to consider an application for judicial review of the Order, and that jurisdiction did not extend to inquiring into the validity of an Order made by a Minister pursuant to another Act on the basis that there was some connection to an employment relationship. This type of claim was also prohibited under the Employment Relations Act 2000 (the Act); and
  1. The Act made it clear that claims for termination of employment may only be pursued by way of personal grievance or breach of contract (common law), not judicial review, and such claims may only be commenced in the Employment Relations Authority, not the Employment Court. “The path does not allow the applicant, however pressing the matter might be, to effectively bunny-hop over the Authority to the Court without passing through the first gate.”

Over the ditch

In Australia two legal challenges to mandatory COVID-19 vaccine requirements for certain workers have been launched in the New South Wales (NSW) Supreme Court.  The first claim, filed by Sydney Solicitor Tony Nikolic against the Health Minister and Chief Health Officer, argues that the NSW public health orders and enforcement powers are illegal and unconstitutional and seeks a declaration that the orders are invalid, and for a ban on any further orders made by the Health Minister and Chief Health Officer.  The case is to be expedited through the Supreme Court.

A Police Officer has also filed civil proceedings in the Supreme Court against the Health Minister seeking a declaration that the Government does not have the power to pass orders that essentially coerce people into being vaccinated otherwise they will lose their jobs.

Prime Minister Scott Morrison has made it clear that Australia’s key focus is to hit sufficient vaccination rates (80% of the population) so that the country can gradually open up again.  As at 09 August 2021 Australia has 29,085 active cases of COVID-19 and there have been 1,053 COVID-19 related deaths.

Other jurisdictions

Employers around the world have taken varied approaches to mandatory vaccinations in the workplace.  In the United States, where there is little legal protection preventing private or public employers from imposing vaccination requirements in their workplaces, companies like Facebook and Google require in-office employees to be fully vaccinated.  Meanwhile the US news agency CNN recently fired three people for turning up to work unvaccinated in breach of its company policy.

In the UK, Pimlico Plumbers, a network of tradie contractors, has taken a hard-line approach.  It plans to enforce a “no jab, no job” policy for its 4000 workers and wants to redraft contracts to strengthen its hand.  The company’s founder says he will “boot out” workers who don’t get the vaccine by January 2022.  Harry Potter publisher Bloomsbury has also told its UK staff that they need to be fully vaccinated before they can return to its offices, otherwise they will have to continue working from home.

Clearly employers’ hot-potato-juggling will continue for some time, especially as the various issues at stake don’t look like they will be cooling down anytime soon.

Contact

Fiona McMillan is a Lane Neave Partner in the Employment teamFiona McMillan
Partner, Lane Neave

t +64 9 300 6264
m +64 27 351 2000
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Elisabeth Giles
Solicitor, Lane Neave

t +64 3 372 6340
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