COVID-19 vaccinations in the workplace: Obligations for employers (Part 2)

Introduction:

Following on from our last article, in this article we are covering off more questions regarding the debate around COVID-19 vaccinations in the employment context, and what employers should be vigilant of.

Can an employer change an employee’s terms to include mandatory vaccinations?

New employees:

When hiring new employees in the COVID-19 environment, employers may require prospective employees to receive the Pfizer vaccination (Vaccine) as a pre-condition or a condition of employment. It is well established that an employer can place any reasonable conditions on the employment of new staff, provided they do not breach the prohibited grounds of discrimination in the Human Rights Act 1993 (HRA) (discussed below).

Whether or not such a clause will be reasonable, and therefore enforceable, will depend on:

• the stage of the vaccination roll-out (i.e. the accessibility of the vaccine);
• the nature of the work the employee is being employed to do; and
• the level of risk present at the time the clause or pre-condition is enforced, taking into account:
  • the likelihood of the worker being exposed to COVID-19 while performing the role; and
  • the potential consequences of that exposure on others, and the business itself.

It is more likely that a pre-condition of employment would be reasonable if the role is “high risk” as employers have an obligation under the Health and Safety at Work Act 2015 (HSWA) to ensure, so far as is reasonably practicable, the health and safety of its workers while at work.

For prospective employees, it may be wise to consider updating employment agreements to require employees, in a specific, higher risk role, be vaccinated and show proof of vaccination status

Existing employees:

The situation is more complex when an existing employee decides to decline the vaccine.

Generally, an employer, as a matter of contract law, cannot unilaterally change an existing employment agreement. In some circumstances employment agreements may provide for changes without agreement where that agreement is unreasonably withheld, however, these are often not material terms e.g. location of workplace or start or finish times. For these purposes, including a mandatory vaccination clause in the employment agreement would, in our view, be a material term and would require consultation with employees and agreement.

Where an employer is proposing to make vaccinations mandatory for the performance of certain work, it would be required to issue a proposal to potentially affected employees setting out the proposed changes, the reasons for those proposed changes and possible consequences if the changes are implemented.

Affected employees would be invited to provide feedback, which the employer is then required to consider before making any decisions.  If an employee is unwilling to obtain a vaccination, further consultation with that employee may be required on the potential consequences of their decision. As part of this consultation process, employers should consider alternative methods of mitigating the risk of transmission such as social distancing requirements where reasonable. This consultation process is part of an employer’s legal duty to act in good faith (s 4 of the Employment Relations Act 2000 (ERA)).

If agreement is not reached on the insertion of a vaccination clause and the employee is still unwilling to be vaccinated, the employer may wish to carry out a risk assessment to assess the ongoing viability of that employee’s employment.  See our previous article for the steps employers should follow.

Grounds of discrimination to consider:

An employee may object to vaccination on the basis that it amounts to a religious belief, political opinion or that they have a disability preventing them from being vaccinated as per s 19 of the New Zealand Bill of Rights Act 1990 (NZBORA). It is unlikely that unwillingness to vaccinate, or even a belief it is wrong to do so, could amount to a religious belief or political opinion, however this issue is yet to be considered by the courts in this COVID-19 era. Disability has more scope as its definition is wide – it includes any physical impairment or illness, any other loss or abnormality of physiological function, and the presence in the body of organisms capable of causing illness. People who are immunocompromised or suffer inflammatory rheumatic diseases may have legitimate claim they are being discriminated against if their employment is terminated by reason of their vaccination status.

Under s 28 HRA an employer may accord different treatment based on disability where, relevantly:

“the environment in which the duties of the position are to be performed or the nature of those duties, or of some of them, is such that the person could perform those duties only with a risk of harm to that person or to others, including the risk of infecting others with an illness, and it is not reasonable to take that risk” (s 29(1)(b) HRA).

If an employee or prospective employee will not or cannot be vaccinated for reasons of disability, an employer will have to consider whether it is possible to accommodate that person without unreasonable disruption to the activities of the employer or an unreasonable risk of harm to others. Again, this will depend on the risk assessment we have previously discussed.

In this sense, an employer must balance their obligations under the HSWA with the requirements of NZBORA, which will not be an easy task.

Conclusion:

There will certainly be an influx of disputes where employment relationships will be tested during these unprecedented times. Employers will need to continue juggling their obligations under the NZBORA, the HSWA, and the overarching duty to act in good faith per the ERA.

If you have questions or matters you would like to discuss with us regarding these issues, please contact the team at Ford Sumner, Jaesen Sumner at jaesen@fsl.nz, Nicola Morris at nicola@fsl.nz, or Lucy Aitken at lucy@fsl.nz.