COVID-19 – Can employers require employees to get the jab?
The New Zealand Government’s rollout of the COVID-19 vaccination is in full swing. Prime Minister Jacinda Ardern recently announced that all frontline border staff must be vaccinated by the end of April, or they will be redeployed. In this article, we explore the topical question of whether employers can have similar expectations of employees, and how employers can manage the vaccination of employees.
If employers force existing employees to get a vaccination, they could be in breach of the New Zealand Bill of Rights Act because everyone has the right to refuse medical treatment. Conversely, an employer will be grappling with their obligation under the Health and Safety at Work Act 2015 to take all reasonably practicable steps to protect employees and the public from harm in the workplace, which could include harm caused by an unvaccinated employee.
From a health and safety perspective, in some industries the requirement for vaccination could be a “reasonable instruction”, as an unvaccinated employee could be placing patients or vulnerable people at serious risk (for example, in hospitals or aged care facilities). To that end, employers may consider that certain roles require employees to be vaccinated, and contemplate redeploying unvaccinated employees. In these cases, the Government has confirmed that a health and safety risk assessment must be conducted, and other proper process followed.
Hiring new employees
In the interests of health and safety, it is arguable that employers could require proof of vaccination when hiring new employees. In these cases, the employer cannot discriminate where the potential employee is exercising their right to refuse medical treatment for reasons of disability, religious or ethical belief, or other prohibited form of discrimination under the New Zealand Bill of Rights Act. That said, an employer can refuse to employ an unvaccinated candidate if their refusal to vaccinate cannot be accommodated and genuinely creates a risk to health and safety.
Essentially, where employers’ health and safety obligations conflict with employees’ rights under the New Zealand Bill of Rights Act, a delicate balancing exercise and fair and reasonable process is required if employers are looking to make vaccinations mandatory.
Going forward, it is important to remember that throughout the COVID-19 era, employment law has continued to apply to all employment relationships, and employers are still bound by the same health and safety obligations, and the obligation to act in good faith and show. As always, caution is advised in this grey area, and we recommend getting in touch if you require any guidance.
Employment Law Assistance
Chantelle Tyler and our Workplace Law Team are able to assist with employment matters relating to COVID-19, and provide guidance on crafting policies in relation to your business’ response to COVID-19, or any future pandemic event.
Chantelle is a Solicitor in our Workplace Law Team. She can be contacted on 07 958 7473.
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