Employee vaccination not black and white

27 Apr 21

Column written by Dunedin Partner John Farrow, published in the business section of the Otago Daily Times on Tuesday 27 April 2021.

Both the rolling out of Covid-19 vaccines and the opening of the Australasian bubble have created some complex issues for employers.

The general population is scheduled for vaccinations from July onwards. There’s plenty of commentary on whether or not an employer can require its workers to be vaccinated.

The short answer is “No”. The New Zealand Bill of Rights Act allows New Zealanders the right to refuse medical treatment.

Still, WorkSafe New Zealand’s guidance is an employer can require a specific role to be performed by a vaccinated person, on health and safety grounds.

The conventional advice is based on an employer’s obligation to ensure, so far as is reasonably practicable, the health and safety of its workers and other persons who may be affected as a result of the work carried out by that employer.

There seems to have been little consideration given to whether the vaccines actually prevent transmission.

If they don’t, then there is an argument that requiring workers to be vaccinated won’t protect the health and safety of work colleagues or others they come into contact with.

If the vaccine’s effectiveness is limited to minimising symptoms and effects of Covid then it is harder to identify a health and safety imperative.

WorkSafe’s guidance is that an employer must consult with its workers to assess the risk. Even in a high-risk environment, such as an aged-care facility, if the vaccine does not prevent transmission then it is hard to argue requiring workers to be vaccinated will protect the health and safety of aged residents.

Different workplaces will experience different risks to staff, customers and clients. A tailored assessment of each workplace role must be carried out. This will include whether alternatives such as PPE, masks, hand sanitiser and distancing can discharge an employer’s health and safety obligations.

The situation is certainly clearer when an employer is employing a new staff member. An employer is entitled to include preconditions before agreeing to employ someone.

Those conditions can include the requirement to be vaccinated. However, the Human Rights Act prevents discrimination on the basis of a religious or ethical belief or medical condition.

If reasons given for refusing a vaccine are linked to a religious or ethical belief or medical condition, an employer should be careful before declining to employ a person because they refuse to be vaccinated.

The situation is more difficult for existing employees. If the workplace assessment is that vaccination is necessary to discharge the employer’s health and safety obligations then the matter doesn’t simply end there.

Employers are obliged to communicate in good faith with the employees, including listening to the reasons for the refusal to vaccinate and genuinely considering whether there is any way the employee can be accommodated by performing alternative duties.

Can the employee be retrained or redeployed to a lower-risk role, for example?

Some customers or clients may refuse to deal with unvaccinated employees. That may provide justification for redeployment or alternative duties.

It may even provide justification for terminating the employment relationship if, after good faith consultation, alternative duties for the worker cannot be identified.

Chris Hipkins is on the record as saying that while employees cannot be forced to be vaccinated, it is also not acceptable to have unvaccinated people working in the front line. However, again, absent from the discussion is whether or not the vaccine actually prevents transmission.

There may still be a case for a front-line worker being vaccinated because ensuring reduced symptoms and effects is consistent with the employer’s obligation to ensure its workers’ health and safety.

The considerations are fluid, as is the science. The most up to date information appears to suggest that most of the vaccines are 90% effective in preventing the virus and also 90% effective in preventing transmission.

If that continues to be the official position then the health and safety argument for vaccination becomes a strong one.

A worker is obligated to take reasonable care of their own health and safety but is also obligated to comply with any reasonable instruction given by their employer.

If an employer follows proper process and implements a Vaccination Policy, an employee may be at risk if they refuse to comply with a reasonable instruction given in accordance with that policy.

The opening of the Australasian bubble has created both excitement and cautious optimism. However Vodafone recently put a dampener on this when it told its employees that they might be dismissed if they took a personal trip to Australia and became stranded for an extended length of time.

Vodafone’s internally published “Policy on personal travel to Australia” strongly recommended that any employee planning a trip discuss that with Vodafone’s People Leader before booking flights.

Vodafone later said that it would review how its Travel Policy had been communicated — “we can see we didn’t get the messaging right on this one …”.

The reality is that since both Governments have approved Australasian travel without quarantine, it will be difficult for an employer to justify terminating an employee simply because they chose to hop on a plane to Australia and then got stranded.

The situation is comparable to termination when an employee is unable to return to work due to medical issues.

For example, an employer cannot simply terminate an employee because they chose to go skiing, knowing the risks, and then broke their leg and couldn’t come back to work.

The employer is obliged to consider when the employee might be able to return to work; what alternative duties are available and what options are available to cover the employee until they can return.

As with all employment issues, an employer is obliged to act fairly and reasonably and to communicate with its employees in good faith.

That communication should include clearly outlining expectations and any concern the employer may have about its ability to hold a worker’s position open if that worker were to become stranded. Alternatives, such as encouraging an employee to take their laptop with them, should be considered.

As with everything, communication is the key.

Read the article on the ODT website here

For more information contact:

John Farrow