CAN EMPLOYERS FORCE EMPLOYEES TO GET VACCINATED? (October 21, 2021)
When it comes to mandating vaccinations in the workplace, the New Zealand Bill of Rights Act 1990 does not overrule other legislation, such as the Health and Safety at Work Act 2015, but there is a process employers need to follow before mandating employee vaccinations.
The Approachable Lawyer and human resources law expert, Michael Smyth, says that the New Zealand Bill of Rights Act 1990 is a piece of legislation like any other that must, in certain circumstances (such as when public health and safety are concerned), take a back seat (New Zealand does not have a constitution).
“Can an employer mandate vaccinations? It depends on the nature of the role. There are two categories of employees. Those that are covered by a Government health order, for example, border workers, healthcare and education and prisons staff, and those that are not.
“Where a Government mandate does not cover a role, the employer has to carry out a health and safety risk assessment to determine whether the role raises the risk of infection or transmission above the risk faced outside of work. If the employer determines that their staff are working in a high-risk category, then they can require staff to be vaccinated.”
Smyth says things get blurry around the assessment of a role.
“For example, if your staff are working with vulnerable people, you would likely require workers to be vaccinated because those people are more vulnerable to health issues from Covid-19. Similarly, if you have a role which is public facing, and it would be difficult to contact trace those who the worker came into contact with, that may also justify a vaccine mandate.”
When a company mandates vaccination, you have two pieces of legislation that conflict. The Bill of Rights is about freedom of choice and the Health and Safety at Work Act 2015, which is concerned with eliminating or minimising health and safety risks.
Smyth says the Government is asking employers to walk a tight rope between the two Acts.
“What you cannot have is a blanket mandate. There needs to be a thorough assessment and the factoring in of other measures that could help mitigate the risk of transmission—for example, personal protective equipment and safe distancing.
“Should an employee challenge the mandate, the Employment Relations Authority would want to see the health and safety assessment and would want details on how it was carried out.”
https://www.worksafe.govt.nz/ offers a list of questions to determine whether a role is a high risk or not. Some examples of the questions an employer needs to deal with during the assessment include:
- How many people does the employee carrying out the work come into contact with?
- How easy is it to identify these contacts?
- How close is the task in proximity to other people?
- How long does the work require the employee to be in proximity?
- Is there regular interaction with people at high risk from health issues?
- What is the level of risk inside the workplace compared to outside? (If the risk is not higher in the workplace than out, it’s probably not an issue.)
Smyth says the employer is entitled to ask a worker if they are vaccinated where it is for a lawful purpose, such as determining whether they can perform a role that requires vaccination. However, asking about vaccination status in other circumstances may cause issues under the Privacy Act.
“I recommend that the employer has a vaccination policy in place. If an employee doesn’t answer questions about their vaccination status – as is their right – a policy will allow you to assume they are unvaccinated.
“If an unvaccinated person is performing a role which requires vaccination, you should consult with them about possible redeployment in the organisation. If there are no other alternatives, then termination may be a last resort.”
Smyth says there are exceptions to freedom of choice, particularly where health and safety is concerned.
“If you work in the aged care sector, you can still choose not to be vaccinated. But the Bill of Rights Act doesn’t preserve the right to work in the aged care sector. Freedom of choice doesn’t mean freedom from the consequences of our choices.”