Legal opinion: employers can require shot

13 Oct 21

Column written by James Cowan and published in the Otago Daily Times on 13 October 2021.

Private businesses can make it compulsory for employees to be vaccinated against Covid-19 if they justify the need to do so, employment law specialists say.

Earlier this week the Government announced compulsory vaccinations for teachers and front-line health workers.

Port workers were required to be vaccinated before the start of this month.

Covid-19 Response Minister Chris Hipkins said mandating vaccination was a legal matter for businesses to work out, rather than a decision for the Ministry of Health.

The Government would be providing advice and support and work to ensure the legal basis was clear was ongoing, he said.

Anderson Lloyd associate James Cowan, from Dunedin, said a range of businesses were seeking direction on compulsory vaccination.

‘‘First, it was our clients in aged care and health that were inquiring, but now it is a range of industries,’’ Mr Cowan said.

Businesses could justify the need for vaccination if it was needed to help keep employees safe under the health and safety legislations.

To get that justification, a business would need to complete a health risk assessment and then complete agreement with staff.

Mr Cowan also believed businesses could decide it was needed for commercial reasons.

‘‘If a client said ‘we are only going to engage with you if all of your staff are vaccinated’ that would be giving the employer a bit of a different justification rather than just a health imperative,’’ he said.

Employment New Zealand’s website said that a business could ask a worker about their vaccination status.

If the staff member did not disclose or provide evidence about their vaccination status, the business could assume the worker had not been vaccinated for the purpose of managing health and safety risks.

However, businesses should inform staff of that assumption, and what would happen if the worker was not vaccinated or did not disclose their vaccination status, the website said.

University of Otago labour law lecturer Dr Dawn Duncan said if businesses were looking at hiring new staff, they could make it a requirement to be vaccinated.

‘‘If it is genuinely a requirement on health and safety grounds, then they can inquire into that person’s vaccination status.’’

Dr Duncan believed that an employer could only dismiss a staff member if they were not vaccinated if there was a substantive reason for it, which could really only be on health and safety grounds.

The business would need to make sure it was being procedurally fair by explaining why vaccination was a requirement of the job, giving the employee an opportunity to respond and considering all feedback, Dr Duncan said.

 

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Link to ODT article here.

 

For more information contact:

James Cowan

james.cowan@al.nz