COVID-19 vaccinations in the workplace: Obligations for Employers (Part 1)
Introduction:
New Zealand’s vaccination rollout has gathered pace with approximately 782,000 Kiwi’s now fully vaccinated. As vaccination rates increase with the availability of the Pfizer vaccine (Vaccine) and the anticipated easing of some border restrictions, a number of questions from employers and employees will arise about their obligations and rights when it comes to workplace vaccination requirements.
The issues that require consideration when it comes to the vaccine and vaccination are relatively novel; we have not experienced a Pandemic of Covid-19’s reach and effect in modern times. This means that employers and employees will need to navigate different pieces of legislation, often adopting a first principles approach in working out what steps to take when contentious issues inevitably arise.
Three pieces of legislation immediately come to mind. Under the Health and Safety at Work Act 2015 (HSWA), a person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, the health and safety of its workers while at work. The New Zealand Bill of Rights Act 1990 (NZBORA) ensures that you have the right to refuse to undergo medical treatment, whilst under the Employment Relations Act 2000 (ERA) employers and employees must adhere to a number of obligations, including the obligation to act in good faith when dealing with each other.
Employers may be questioning what they can do in relation to employees who do not wish to receive the vaccine or disclose their COVID-19 vaccine status and what happens if, for example, 80% of a particular work force who are vaccinated do not wish to have unvaccinated workers at work?
We set out our thoughts on these questions below.
Can an employer impose a mandatory requirement on their employees to be vaccinated?
Every person in New Zealand has the right to refuse medical treatment under s 11 of NZBORA. The administration of the vaccine by trained vaccinators with your informed consent is medical treatment. As such, an employee can decline to have a vaccination and employers cannot compel an employee to undergo medical treatment, including receive a vaccination, in any situation.
Privacy issues
A person’s vaccination status is personal information under the Privacy Act 2020. In general, unless they have given their permission, employers are not allowed to share or obtain any information about whether or not their employees are vaccinated. However, justifiable reasons to ask for an employee’s vaccination status include a legitimate health and safety concern, or where certain roles must be performed by a vaccinated worker, such as staff at an MIQ facility or border security.
Importantly, if employees do not want to tell their employer whether they are vaccinated or not, the employer can treat them as though they are unvaccinated, but the employee needs to be told about the consequences.
In any event, an organisation must consider how it gets its personal information. They must not collect information in a way which is unreasonably intrusive in the circumstances. Further, while an organisation may have a justifiable reason to know whether a person has been vaccinated, it does not necessarily need to know why a person is unable or chooses not to be vaccinated, and an employee does not have to provide this information.
Vaccinated employee v unvaccinated employee considerations
Employees in roles that are covered by the COVID-19 Public Health Response (Vaccinations) Order 2021, and any further Vaccination orders made under the COVID-19 Public Health Response Act 2020 (“the Health Orders”) are required by law to be vaccinated in order to perform these roles. To date these Health Orders cover workers mentioned above, amongst other similar work groups. See here for the full list of groups affected covered by the Health Orders.
In these cases, if an employee declines to be vaccinated (or declines to confirm if they are vaccinated or not) they may be subject to an investigation into the ongoing viability of their employment.
Unvaccinated workers who have previously been assigned to work in these settings will need to discuss alternative options with their employers. They will not be permitted to continue to work in high-risk environments until they are vaccinated.
For the rest of New Zealand’s workplaces, employers who would prefer their workforce to be vaccinated will need to follow a fair, reasonable and transparent process when dealing with an employee who declines to receive a vaccine, or declines to advise of their vaccination status.
MBIE’s current advice is that employers can require a specific role to be performed by a vaccinated person, on condition that employers complete a health and safety risk assessment to support such a requirement. The assessment must be done in collaboration with workers, unions (if applicable), and other representatives. This risk assessment looks at the risk the employee poses against the nature of the industry (work environment) and the specific role they perform. The risk will need to be assessed on a case-by-case basis. By way of example, a waiter/waitress in a busy hospitality business or a bus driver on a city route would presumably be at a higher risk of contracting Covid-19 than someone working from home in a consultancy role because of the amount of close contact involved on a daily basis.
To carry out a risk assessment for exposure to COVID-19, employers need to consider two main aspects about the role of the employee in question:
- The likelihood of the worker being exposed to COVID-19 while performing the role; and
- The potential consequences of that exposure on others (e.g. community spread).
If an employer considers the role of the employee in question to be high risk, the employer should assess in consultation with the employee what, if any, alternative working options there are for the employee to minimise the risk of contracting COVID-19, for example: can the employee:
- work from home;
- wear appropriate PPE; or
- be redeployed within the business to safer work.
In industries or workplaces that pose a low risk to COVID-19 exposure, the ability to enforce vaccination on health and safety grounds will be more difficult to justify.
Where the role of the employee is high risk and there are no viable alternative working arrangements, the employer may be left with little option but to consider termination of employment after a fair and transparent process.
Before making a decision that affects an employee’s employment, that decision must satisfy the test of justification. In short, an employer should ask if the decision is one that a fair and reasonable employer could have reached in all the circumstances at the time the decision was made.
Conclusion
As the country navigates this stage of the vaccination rollout, it is important for employers to remain conscious of employees’ fundamental rights to refuse medical treatment, whilst staying conscious of the health and safety of their employees and their wider obligations under the HSWA. There will be a balancing act and not all employers will take the same approach.
A further article will follow next week addressing more points for employers to consider, including obligations under NZBORA and whether an employer can change an existing employee’s terms and conditions to include a mandatory vaccination provision, or insist on such a requirement for all new employees.
If you are unsure about how to approach the above issues or procedures, please contact Jaesen Sumner at jaesen@fsl.nz, Nicola Morris at nicola@fsl.nz, or Lucy Aitken at lucy@fsl.nz.