What employers need to know

Border and managed isolation workers are already required to be vaccinated under the same health order, the COVID-19 Public Health Response (Vaccinations) Order 2021 (Health Order).

Despite the Health Order, if employees in these sectors refuse to get the vaccine, this does not give employers an immediate right to terminate employment. A proper consultation process still needs to be followed and ordinary employment law principles apply. This includes giving consideration to any feedback and reasons given by employees as to why they are not being vaccinated. As part of any process, employers should also consider if any other steps can be taken to ensure health and safety.

From recent court decisions on this topic, we have seen the courts place heavy emphasis on the process that the employer followed prior to dismissal. For example, last month, the Employment Relations Authority held that a border worker who refused the vaccine was justifiability dismissed. In making its decision, the Authority carefully considered and placed significant weight on the process undertaken by the employer leading to dismissal.

For those not covered by the Health Order, the situation is more complicated. The default is that employers cannot require employees to be vaccinated unless they occupy a “high-risk” role. To determine whether a role is high-risk, employers must undertake their own risk assessment for each role. WorkSafe New Zealand has provided some guidance on what questions should be asked as part of any risk assessment. For example, consideration should be given to the amount of exposure a worker has to others, how easy it is to identify persons the worker has contact with, and whether the worker interacts with persons at risk of severe illness from Covid-19. The higher the risk, the higher likelihood that the work should be performed by a vaccinated employee.

In any event, mandatory vaccination outside of the Health Order remains risky and untested by the courts. Employers may prefer to encourage employees to get the vaccine, for example by providing incentives or time off to receive the vaccine. However, 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 advice before taking any formal steps.

Our employment team are staying on top of these ongoing developments and are able to assist with any queries you may have or to draft the necessary documentation.