Employers will be justified in requiring employees in Category 1 to be vaccinated and will be breaking the law if they allow those employees to perform their usual duties unvaccinated.
The Employment Relations Authority recently found in the case of GM v New Zealand Customs Service that a border worker at a maritime port facility was justifiably dismissed for refusing to be vaccinated. Of course, we don’t know what the Authority would have decided if the worker was not covered by the Health Order.
Employers of workers in Category 2 may be justified in requiring their employees to be vaccinated providing they have first undertaken a comprehensive risk assessment of the particular position and met their usual employment obligations such as adequate consultation and good faith.
The risk assessment should seek to determine whether it is necessary for the role to be performed by a vaccinated person. WorkSafe have advised that the risk assessment must include (but is not limited to) considering:
- The likelihood of workers being exposed to Covid-19 while performing that role; and
- The potential consequences of that exposure on others (e.g., community spread).
Employers will need to consider a range of other factors such as whether there are other measures that might provide employees with sufficient protection rather than mandatory vaccination, including regular testing, the use of PPE and other hygiene and sanitisation measures.
What can an employer do if they decide that a particular role can only be performed by a vaccinated employee?
If this is the result of a risk assessment, then it doesn’t automatically mean termination of employment will be justified. Employers will need to consider whether the unvaccinated employee can be redeployed to another area of the business that has less exposure to Covid-19 or where they don’t represent a Covid-19 risk to themselves or others. They will need to listen to the employee’s reasons for refusing the jab and see if an alternative solution can be reached.
If this is not possible then termination on the grounds of redundancy may be justified, as the employer can reasonably claim that the requirements of the employee’s role have now changed (the role can now only safely be performed by a vaccinated person) and the incumbent is no longer able to perform the role.
Employers in category 3 will face significant challenges if they attempt to mandate vaccinations for their employees. What employers can do is communicate with employees about the benefits of vaccination and point them in the direction of reliable information (such as the Ministry of Health website) to enable them to make an informed decision about whether to get the vaccine.
What about new employees?
Employers recruiting new employees will be able to include a clause requiring the employee to be vaccinated providing they have a genuine reason for requiring this, which could include them deciding this is necessary after completing a risk assessment.
Employers should remember that existing or potential staff may have specific reasons why they do not wish to be vaccinated rather than just mere scepticism of the science, including for medical or religious reasons. Religious beliefs and political opinion are prohibited grounds of discrimination under the Human Rights Act 1993 so employers should tread cautiously if an employee or prospective employee cites one of these grounds as their reason for being unvaccinated, in order to avoid a potential discrimination claim.
As always, what is appropriate for a certain workplace or category of workers requires a fact-based analysis. While this article provides guidance, employers and employees are encouraged to take legal advice on their specific circumstances.
Please contact Glenn Finnigan on 021 779 770 or Jeremy Ansell on 022 098 8736 if you need advice about the implications of the vaccine rollout on your workforce.