COVID Mandatory Vaccinations

The Jury is Out on the Jab – Employment Relations Authority Rule on “No Jab, No Job”

The Employment Relations Authority (ERA) has given us our first glance into the ability of employers to require employees performing certain work to be vaccinated, issuing its much-anticipated judgment in the New Zealand Customs Service case (Customs).

The case was brought by an employee of the New Zealand Customs Service who was dismissed after refusing to be vaccinated, along with eight other front-line border staff.

Customs had undertaken a risk assessment of its workplace and commenced a consultation process with front line border staff regarding mandatory vaccination in March. Before this process was completed the Government announced on April 9 that all front-line border workers, including those at ports, must be vaccinated or start being moved into low-risk roles by April 12.

The Covid-19 Public Health Response (Vaccinations) Order then came into effect at 11.59pm on April 30 providing that certain “affected persons” (those working at MIQ and border facilities) could not continue working in their roles unless vaccinated.

Following discussions with the applicant and the eight other staff around redeployment options, Customs gave a notice of termination of employment to each of those eight staff members on April 30.

This ruling provides more clarity on the legal stance being taken in New Zealand on mandatory vaccinations and allows us to give some guidance as to how you can handle this issue as an employee or employer.

Why did the ERA find the dismissal to be justified?

They dismissed the applicant’s argument that their stance on vaccination “did not impact any other person in the workplace”, given the duties of every employee under the Health and Safety at Work Act 2015 to take “reasonable care that his or her acts, or omissions do not adversely affect the health and safety of others”. There was also a focus in this case on the high-risk nature of the work performed.

So how does this affect me as an employee?

Every person has the basic right to refuse to undergo medical treatment, so your employer can’t drag you kicking and screaming to be vaccinated. The question is whether an employer can dismiss a current employee for refusing to be vaccinated, and whether a new employer can refuse to hire a prospective employee who refuses to be vaccinated.

For a new employee, the argument against this comes under the Human Rights Act. If you can claim that your reasons for not being vaccinated are based on disability or religious belief, then your employer must balance this against the Health and Safety at Work Act.

For existing employees, the waters are a bit murkier. The employer would be going beyond the terms of the contract and imposing a new condition, but it seems this may still be allowed based on the Customs case, with obligations under the Health and Safety at Work Act prevailing.

As an employer, what else do I have to consider?

Conveniently, WorkSafe have provided two factors for employers to consider here:

1. The likelihood of a worker being exposed to Covid-19 while performing the role; and
2. The potential consequences of that exposure on others. 

In cases where the risk of exposure and the consequences of contracting Covid-19 justify an employer limiting certain roles to vaccinated employees only, the employer must consider redeployment for non-vaccinated staff. If redeployment simply isn’t feasible, then the dismissal may be justified.

Do you want to introduce a mandatory vaccination policy at your work?

First, consult with your employees and outline the rationale to them –

• Have you undertaken a risk assessment?
• What options do you have available for employees who don’t want to be vaccinated?

While we are still in the early stages of mandatory vaccination’s adoption into New Zealand law, with only border and MIQ facility workers included, if the Customs case is anything to go by then we will likely see a movement in favour of public health and safety.

If you have any concerns or queries around your rights as an employee or employer, McMillan & Co. can provide you with advice. Don’t hesitate to contact us.

Charlie Hantler, Senior Solicitor

charlie@mcmillanco.nz