The COVID-19 vaccine has arrived in New Zealand and its roll out is well underway.
Border workers and close contacts are the first to get vaccinated, followed by frontline health workers, with the vaccine then become more widely available to the general public in the coming months. This raises the question as to whether employers can require employees to get the COVID-19 vaccine.
This is an unprecedented area of law, and requires the balancing of health and safety, ethical, and other employment considerations. For example, the New Zealand Bill of Rights Act 1990 gives persons the right to refuse medical treatment, so that right needs to be carefully weighed against the need to protect the workplace and other persons from the risk of COVID-19.
While this point has not yet been tested by the courts, the reasonableness of mandatory vaccination will likely come down to the industry in which the employer operates. For example, employers who employ frontline health workers, essential workers, or employees that are exposed to older people, people who have underlying health conditions and/or are immunocompromised as part of their work, may be justified in requiring vaccination. In such cases, mandatory vaccination could be seen as a “reasonably practicable” step for an employer to take under the Health and Safety at Work Act 2015 in order to manage the risk of harm that COVID-19 presents. On the other hand, mandatory vaccination would likely not be justified in industries that pose less risk of harm, such as industries that can work in other ways, for example office workers who can social distance and/or work from home.
Some analogies can be drawn between an employer’s ability to test for drugs and alcohol. In such circumstances, an employee’s right to privacy needs to be balanced with the employer’s obligation to ensure health and safety. To achieve that balance, robust processes need to be in place to ensure that employees’ rights aren’t improperly infringed. The situation is likely to be the same here.
To make vaccination compulsory for current employees, employers will either need to introduce a new mandatory vaccination policy to staff or provide current employees with a variation to their employment agreements. A process of consultation and normal employment law principles will apply. For new employees, it is less onerous as a new clause can simply be included in their employment agreement requiring vaccination as a condition of employment.
Nonetheless, vaccination is a controversial topic, and employees may hold strong views. Therefore, employers may prefer to make the vaccine voluntary, while strongly encouraging employees to get it and making it easily accessible, such as facilitating for employees to be vaccinated at work (such as that usually occurs with the annual flu shot).
For example, Air New Zealand has advised media that the vaccine is not mandatory for its employees but is strongly encouraged. This is despite being on the front-line of international borders. Employers should also consider other reasonable measures that may be able to be taken to ensure health and safety instead of requiring mandatory vaccination. For example, redeploying employees into different roles where possible, or only have vaccinated staff working in close contact with vulnerable persons. Of course, these steps may not be practical in all circumstances.
While some industries may justify mandatory vaccination, the reasonableness of such has not been tested by the courts and employers must make vaccinations mandatory at the risk that they may be the first test case.
As always, the best advice is for employers to consult and communicate with staff. Employment relationships are built on good faith and employers should approach the subject of vaccination carefully and should always seek legal advice before taking such steps.
For any questions on the above or for assistance in drafting the necessary documentation, please get in touch with Sophie or Kendal in the Cavell Leitch Employment Team.