Mandatory Vaccinations: What do Employers need to know?

The 2021 outbreak of the Delta variant in New Zealand has reignited debate as to mandatory vaccinations in the workplace. Employers who are contemplating mandatory vaccinations for their employees need to consider a range of factors involving current government orders, health and safety obligations, and rights of staff.

Mandatory Vaccinations for Frontline Workers

The COVID-19 Public Health Response (Vaccinations) Order 2021 specifies which workers must be vaccinated in Schedule 2 of the Order, these are only front line border/MIQ workers.¹ In a recent case NZ Customs Service was challenged for requiring its worker to be vaccinated, in GF v New Zealand Custom Service². The Employment Relations Authority held that NZ Customs Service was justified in terminating the employment of a front line border worker who refused to be vaccinated. A key factor in this decision was a comprehensive health and safety risk assessment undertaken by Customs, which determined that this employee’s role required a vaccinated person.

Mandatory Vaccinations for Non-Frontline Workers

As per Worksafe government guidelines, non-frontline employers who wish to implement mandatory vaccinations must carry out a health and safety risk assessment to determine whether a vaccinated person is required to perform the role. This assessment includes engaging in discussions with the companies’ workers and their representatives to allow for consultation and feedback. The assessment has two key considerations:

• The likelihood of a worker being exposed to covid 19 while performing the role.
• The potential consequences of that exposure on others (staff, contractors, clients, customers).

The risk assessment will illustrate whether workers failing to be vaccinated has the potential to cause sufficient harm to the health of other employees, staff and clients. These discussions may also educate and convince un-vaccinated workers about the benefits of getting vaccinated.

Any risk assessment will need to consider what protective safety procedures (eg: facemasks and social distancing) can be implemented, what other mitigation measures can be put in place (e.g. work bubbles), and whether these are sufficient to mitigate risks.

Following the spread of the Delta variant in New Zealand, it may be deemed reasonable for an employer to determine a non-front line role requires a vaccinated person from a health and safety perspective. This question was left open in GF v New Zealand Custom Service but has yet to be tested in New Zealand.

We note for example across the ditch the Victorian Government has recently announced mandatory vaccination for construction workers, which are non-front line workers.

Our advice for the construction sector and any employer considering whether mandatory vaccination might be appropriate or required to consider the current guidelines:

• This area of law is untested, so any decision around mandatory vaccination may be challenged by staff.
• The employer should follow the Worksafe health and safety risk assessment guidelines and process of consultation with staff.
• The risk assessment is for particular roles within the business, some of which may pose different risks than others, and there may be some risk mitigation strategies that can be more easily implemented in certain roles or areas, than others.
• Before implementing any mandatory vaccination requirements of your staff we strongly recommend you seek legal advice in respect of the process and employment law considerations.

FAQs we have recently received:

1. Can you require your employees to get vaccinated?

• No you can’t require any person to undergo a medical procedure.

2. Are you able to require your employees to advise you if they have been vaccinated and can you disclose this information to third parties?

• You can ask your employees if they have been vaccinated but you should advise them they are not obliged to tell you.
• You have obligations under the Privacy Act 2020 to keep that information confidential.
• Under the Privacy Act 2020 there are certain exceptions to disclose confidential information to third parties, including with written consent of the employee.

3. Can you make employees who do not get vaccinated redundant?

• If any employer follows the process outlined above regarding a risk assessment for a particular role, then it may conclude that a role requires mandatory vaccination, even if the role is non-front line.
• If the employer makes that assessment and communicates with staff the requirements for that role, then the options may include either (a) the employee advises that he/she has been vaccinated and therefore meets requirements or (b) the employee does not disclose this information or advises that he/she refuses to be vaccinated. In this instance it is possible for the employer to make the previous position redundant, following proper consultation process. The basis for this assessment can be challenged, and there is no authority yet in New Zealand on what will be considered reasonable. Standard redundancy process requirements should be followed, including redeployment considerations.

4. Are third parties e.g. head contractors able to restrict your employees from accessing a site if they have not been vaccinated?

• Any new terms such as mandatory vaccination form new terms of contract so proper process must be followed regarding variation of any terms of agreement. There would likely be complex issues to consider regarding PCBU duties in respect of health and safety on site, alongside potential employment law and human rights issues. We would recommend you seek legal advice to assist in navigating the various legal considerations.

Please contact our employment law team with any queries you may have:

• Catherine Pendleton
  Senior Associate – catherine.pendleton@turnerhopkins.co.nz
• Michael Robinson
  Partner – mrobinson@turnerhopkins.co.nz

References

• 1 I also note that the lawfulness of the Order is currently the subject of judicial review in the High Court.
• 2 NZERA 382.