On 1 September 2021 the Employment Relations Authority issued its long awaited determination relating to the right of employers to require employees performing certain work to be vaccinated.
The case was brought by an employee of the New Zealand Customs Service who was dismissed after refusing to be vaccinated, along with 8 other front line border staff.
Customs had undertaken a risk assessment of its workplace and had commenced a consultation process with front line border staff regarding mandatory vaccination in March 2021. Before this process was completed the Government announced on 9 April 2021 that all front line border workers including those at ports, must be vaccinated or start being moved into low risk roles by Monday 12 April 2021.
The Covid-19 Public Health Response (Vaccinations) Order 2021 then came into effect at 11.59pm on 30 April 2021 providing that certain “affected persons” (those working at MIQ and border facilities) could not continue working in their roles unless vaccinated.
Having engaged with the applicant, and other non vaccinated employees, about redeployment options, Customs gave notice of termination of employment by letter dated 30 April 2021 citing the Government Order that came into effect that day.
In finding that the dismissal was justified, the authority rejected the applicant’s argument that their stance on vaccination “does not impact any other person in the workplace”. The authority held that this was unsustainable given that every employee has an obligation under the Health and Safety at Work Act to take “reasonable care that his or her acts, or omissions do not adversely affect the health and safety of others”.
The authority further found that Customs had every right to determine that the position could only be undertaken by a vaccinated worker. In fact, the authority went even further stating:
“I commend Customs for the work they undertook that persuaded an overwhelming majority of its employees to access the vaccine when society is bedevilled by various contentious sources of information on this subject”.
The arguments in favour of mandatory vaccination were compelling in the Customs case, both because of the high risk nature of the work performed, and also due to the Government Order.
However other employers, who are not subject to a Government Order, will need to undertake their own risk assessment, taking into account the relevant legal framework.
The starting point, in this respect, is that every person has the right to refuse to undergo medical treatment, which includes vaccination. This is a basic civil and political right enshrined in law.
It follows that an employer cannot literally force an employee to be vaccinated against their wishes. The real question is, if an employee chooses not to be vaccinated, can an employer refuse to hire them, or alternatively dismiss them if they are already employed.
In respect of new employees the answer is relatively simple – an employer can impose any reasonable condition as a pre requisite for employment, but cannot discriminate under the Human Rights Act. The potentially relevant grounds of discrimination under that Act are likely to be disability or religious belief.
Therefore if an employee’s reasons for not being vaccinated are based on disability or religious belief, an employer would be required to consider whether they could be accommodated without unreasonably disrupting the employer’s business. In some roles, for example aged care, the answer is likely to be no, but each situation would need to be properly considered.
For existing employees, the answer is more complicated. This is because the employer would be imposing a new condition of employment that the employee did not sign up to when they entered into the employment relationship.
Nonetheless, as is clear from the Customs case, employers have obligations under the Health and Safety at Work Act to assess risks in the workplace and to take all reasonably practicable steps to ensure the health and safety of workers and people coming into the work environment. Based on such a risk assessment it may be reasonable for an employer to determine that certain roles can only be performed by vaccinated workers.
Worksafe New Zealand has issued guidelines on this issue which state “Businesses and services can also require a specific role be performed by a vaccinated person – if you have done a health and safety risk assessment to support this”. Worksafe has suggested that employers consider two factors in carrying out this assessment;
- The likelihood of a worker being exposed to COVID-19 while performing the role; and
- The potential consequences of that exposure on others (for example, community spread).
There will be some sectors where the risk of exposure and/or the consequences of contracting and spreading COVID-19, justify an employer directing that only vaccinated employees can perform certain roles. In such cases, the employer would need to consider redeployment and any other options for non-vaccinated staff, but if these alternatives could not reasonably be accommodated, dismissal may be justified.
Prior to introducing a mandatory vaccination policy an employer would be required to consult with employees, including explaining the risk assessment it had undertaken. It would also need to outline what options might be available for any employees exercising their right not to be vaccinated.
Whilst the Government has mandated vaccination only for employees working at the border and in MIQ facilities, it is not surprising that employers in other sectors are now adopting the same approach. How far this can be taken will ultimately need to be tested and determined by the Courts, but the Customs case suggests that there is a compelling argument for putting public health and safety first.