Covid vaccination and the workplace

The roll-out of COVID-19 vaccines around the world has created mixed emotions around civic responsibilities and bodily autonomy. The New Zealand Government has expressly stated it will not make vaccination mandatory, and the pressure has now fallen on employers to decide whether they will require their employees (and other workers) to be vaccinated.

There are two conflicting angles to this. The first is the legal consequences of unilaterally varying an existing employee’s employment agreement to impose a new condition that the employee be vaccinated. The second is the overarching health and safety obligations of employers to ensure their workers are appropriately protected from exposure to COVID-19.  This second angle creates differing issues depending on whether or not the workplace is one in which exposure to COVID-19 is likely.

This article examines the responsibilities on directors around worker vaccinations. It explores the question whether employers can lawfully require employees to be vaccinated, and the implications of the new COVID-19 vaccine on the health and safety duties of PCBUs and officers (and workers).

In the absence of applicable legislation, it is likely to be unlawful for an employer to mandate all employees to be vaccinated. However, there is a potential exception where individual roles are required to be performed by a vaccinated person, or in the space of new hires. To meet their health and safety obligations, directors should be setting expectations around vaccinations, ensuring that the PCBU consults with staff, and ensuring a supportive work environment from a governance perspective.

Can employers require employees to be vaccinated? The legal position

From an employment law perspective, the question whether an employer could lawfully compel an existing employee to be vaccinated (or redeploy them or take disciplinary action if they refuse) does not have a clear-cut answer.

In most situations, this would not be permissible because it would amount to the employer unlawfully imposing a new employment condition without the employee’s agreement. The Ministry of Business, Innovation and Employment (MBIE) has taken a very conservative approach in its recently issued guidance, stating that employers cannot require employees to:

• be vaccinated;
• disclose their vaccination status; or
• disclose their reasons for not vaccinating.

However, both MBIE and WorkSafe consider that an employer could require that a specific role be performed by a vaccinated person, provided a health and safety risk assessment has been undertaken to support this requirement. WorkSafe has suggested that if a role requires mandatory COVID-19 testing under the COVID-19 Public Health Response (Required Testing) Order 2020, this will be a strong indicator that it is a role needing to be performed by a vaccinated person.

Any health and safety risk assessment about a role’s necessity to be performed by a vaccinated person will involve considering two factors:

1. the likelihood of a worker being exposed to COVID-19 while performing the role; and
2. the potential consequences of that exposure for others.

Under the first factor, it will be necessary to ask whether the environment in which the employee works carries a high risk of exposure to COVID-19. Such an environment will likely include aircrafts and borders, managed isolation or quarantine facilities, and healthcare settings. For as long as New Zealand has a low or zero community transmission (and its borders are closed), it would be a stretch to argue many other workplaces qualify.

When considering the potential consequences for others, an important question is whether the role involves regular contact with vulnerable people, such as immune-compromised individuals and older people. Healthcare and aged care workers will be captured in this, but not many other roles would carry these risks.

In light of these factors, it is unlikely that the majority of roles will need to be performed by a vaccinated person, and it would therefore not be permissible to mandate the vaccination of those existing employees.

Where a health and safety risk assessment does indicate that a role requires a vaccinated person, and the person currently in that role refuses to vaccinate, an employer would need to consider whether it could temporarily (or permanently) redeploy that individual to another lower-risk role, or whether that individual could feasibly work from home, before thinking about taking a dismissal route. MBIE’s advice is that dismissal on the grounds that the employee refuses to vaccinate will be unjustifiable in almost all circumstances.  We consider that this stance is based on the current situation of low to zero community transmission in New Zealand.

There is potentially more leeway for employers to require new hires be vaccinated – the so-called ‘no jab, no job’ rule which has been the subject of a lot of media coverage overseas. However, caution should be taken in adopting this approach in New Zealand as there may be implications under discrimination law. For example, the Human Rights Act 1993 prohibits discrimination based on age, disability, and religious belief, and it would therefore be unlawful to refuse to hire someone who is unvaccinated due to age, disability, or religious reasons.

Directors’ health and safety obligations

Under the Health and Safety at Work Act 2015, companies and other PCBUs have a primary duty to ensure as far as reasonably practicable the health and safety of its workers. Directors and officers personally have a duty to exercise due diligence in ensuring that the PCBU/company complies with that primary duty.

Companies and their directors/officers do not need to mandate COVID-19 vaccinations for all employees to meet their health and safety obligations. As mentioned above, it may in fact be unlawful to do so.

However, directors will need to ensure that they have carried out a careful risk assessment and that reasonable safeguards are in place to reduce the risk of exposure to COVID-19 in the circumstances. Their duties require them to take positive steps, which should look like:

• encouraging and supporting employees to vaccinate – for example, by allowing vaccinations on-site and allowing employees to take paid leave to be vaccinated;
• learning and staying informed about the different vaccines, their benefits and side effects, and the nationwide vaccine roll-out;
• engaging constructively with employees, unions and health and safety representatives around vaccinations; and
• being a role model for staff by getting vaccinated. This will foster a culture in which vaccination becomes an expectation from leadership.

As part of exercising due diligence, directors should also ensure that the PCBU:

• implements a clear COVID-19 vaccination policy that sets out the potential consequences for refusal to vaccinate;
• provides employees with relevant information about the COVID-19 vaccination;
• introduces a vaccination requirement for new hires (subject to the condition that this is enforced on a case-by-case basis so as to avoid liability under discrimination laws);
• collects and maintains employee information about vaccination status (where employees freely provide this) in accordance with the Privacy Act 2020;
• undertakes a health and safety risk assessment of the workplace, and steps are taken by the PCBU to mitigate risk factors where possible (for example, by installing plexiglass partitions in customer-facing settings);
• undertakes health and safety risk assessments in relation to particular roles that may require a vaccinated person to perform them due to the potential risks of being exposed to COVID-19 for that role;
• keeps work from home policies and social distancing protocols up to date and that the PCBU fosters a supportive environment for staff who need to self-isolate; and
• applies other COVID-19 response measures, such as requiring the use of personal protective equipment and encouraging regular washing of hands.

Taking the above actions, and keeping the risks and measures being taken under regular review, will assist to meet director and officer health and safety duties and will facilitate a more cooperative workplace culture without having to resort to a blanket vaccination requirement.