![shutterstock_1493307161](/sites/default/files/2021-09/reluctant.jpg)
By Marie Wisker, Geoff Carter & Vonda Engels*
As Covid-19 vaccination roll-out moves up a gear, employers are grappling with ways of dealing with the jab-reluctant in the workplace.
The Government, through the Director-General of Health, has powers under the Health Act 1956 to require certain actions of its citizens in order to protect the public health. It is this Act that the Government has relied on to mandate vaccination for key workers (such as at the border and in MIQ) and to enforce aspects of its four alert levels regime.
But the Government has been reluctant to use force, instead relying upon voluntary cooperation from the “team of 5 million”.
Rather than making vaccination compulsory for the general public (or even health workers at this stage), it has sought to protect public safety by being quick to go to Level 4 when there is community transmission and cautious about moving down the levels. Announcing the decisions to take the rest of the country to Level 3 and then Level 2, the Prime Minister said they would not have done this unless they were satisfied that it was safe.
Outside of the political framework, employers have a responsibility to maintain a safe and healthy work environment and must comply with the terms of an employee’s employment agreement. Requiring a vaccine could be a breach of these terms for many existing employees. An employer can negotiate new terms and conditions of employment but there are limits to what they can require of employees outside of reaching an agreement.
Are there any circumstances in which I can require an employee to be vaccinated?
The short answer is yes, but this must be justified.
An employer can make vaccinations mandatory if an employee’s role meets the requirements of the mandatory COVID-19 Public Health Response (Vaccinations) Amendment Order 2021, but this is restricted to port and border workers. There is an online tool you can use to see if your circumstance comes within the Order.
A recent Authority decision shows that employers will be on strong ground if they choose to dismiss an employee who falls within the Order but refuses to be vaccinated. In the determination, the Authority found that the decision to dismiss a border worker who refused to get vaccinated was justified (it helped that the employer had followed a thorough process including a risk assessment and genuinely considered alternatives to dismissal).
For those roles that fall outside of the order, existing employees cannot be presented with a jab-or-job choice as this will infringe their rights under the Bill of Rights Act. However, right now, we consider there is scope to introduce a mandatory vaccine policy in certain circumstances, and after undertaking a health and safety risk assessment, as outlined below. This position is consistent with WorkSafe's vaccination guidance.
There is scope for this to broaden over time and expand to more workforces as our Covid-settings and Government direction changes. This is an area to watch as we are conscious that a number of employers are wanting to take the lead and ensure that they too are adopting a cautious approach to health and safety that uses all means available.
You can make vaccination a requirement in the employment agreement you offer to new hires, subject to anti-discrimination rules.
Can I require that employees in safety sensitive roles are vaccinated?
There are many roles that are safety sensitive which do not come within the ambit of the mandatory Vaccine Order.
We consider that this may be extended at some point as perceptions of what is a safety sensitive role are moving, particularly in response to the highly transmissible Delta strain. The Health Minister has confirmed that advice is currently being sought on whether to make vaccinations mandatory for front line health workers who come into contact with confirmed COVID-19 cases. There have also been recent discussions about whether other front line health workers, aged care workers, supermarket workers and transport drivers should be included.
We note that vaccination is compulsory for residential aged care workers across Australia but much of their response is state led. New South Wales, for example, requires that “authorised workers leaving areas of concern” are vaccinated. In the New Zealand context, this would probably capture truck drivers delivering product to and from Auckland. The Government has already announced that testing will be required for these workers.
Where you want to make vaccination a requirement for an existing employee performing a role outside the Order, you are going to need justification for doing so and you will need to proceed with care.
We recommend you conduct a formal risk assessment of each relevant role to support your decision and to demonstrate why additional measures to reduce the risk of Covid-19 are necessary to the fulfilment of your workplace health and safety obligations. The Authority reiterated the importance of a risk assessment in its recent decision where it held that the employer had undertaken an “impressive review” of the risks, and clearly identified the individual risk factors specific to the employee’s role before requiring the employee (who was later dismissed) to be vaccinated. Key risk factors for this assessment will be: the risk that the role is exposed to the virus; that the role poses a high risk for widespread community transmission and/or whether the role interacts with vulnerable people who are at serious risk of illness. This risk analysis may change over time as New Zealand’s alert level settings change.
Employees have the right to do their job under their existing employment agreement, rights of individual choice under the Bill of Rights Act and the right not to be discriminated against under the Human Rights Act. So this is a difficult legal territory that has yet to be fully tested by the Courts.
It will be necessary to explain clearly why the position is deemed safety sensitive and why vaccination is required. In addition an employer will have needed to consider all other available options to reduce the risk, and whether mandatory vaccinations are necessary on top of those measures. Employers should engage with affected employees when developing the vaccination policy and be consistent in the policy’s application.
What options do I have if a person in a sensitive role refuses vaccination?
Again, if the person is an existing employee, you will need to have regard to their contractual rights.
- Consult the employee to determine why they won’t be vaccinated, or won’t supply evidence of vaccination. Consider their reasons to ensure there is no discrimination under the Human Rights Act.
- Consider whether safety can be served by requiring the employee to wear PPE and maintain social distancing.
- In the absence of any other solution, consider redeployment.
- If that is not possible, you may need to terminate the employee’s employment.
What does this mean for office workers?
It is unlikely that a mandatory vaccination policy could be implemented within a standard office workplace whilst New Zealand is operating within its current alert level framework. That framework means that there is a very low risk of transmission at the point at which workers are allowed back into the office at Level 2. We do however suggest that workplaces keep this under review and look at all other available means that they might have to assess the risk of transmission within their workplace so that they are well placed for what the future might look like beyond the current alert level system. For example, employers should strongly encourage vaccinations and could survey staff to get a good understanding of vaccination levels throughout the office. This could either help to allay staff fears or put the employer in a better position to justify additional measures in the event that vaccination rates are low.
Can I require proof of vaccination?
To ask for proof of vaccination is to seek personal data, which engages the protections the employee has under the Privacy Act. You will need to provide a solid explanation of why you require the information in order to safely manage your workplace and we recommend that you rely on voluntary cooperation. However, you can make it clear that you will take a refusal to answer as indicative that the person is not vaccinated.
Can I incentivise employees to get vaccinated?
You may, but you will need to avoid being seen to discriminate against employees who are unable to vaccinate on health or religious grounds. New Zealand employers in our experience are considering either or both of two incentive options: paid time off to get vaccinated and cash or benefit incentives once proof of vaccination is provided.
This approach is also being taken in the UK and the US, and we understand is producing results in both those jurisdictions.
In order to avoid discrimination, you might negotiate with each employee who genuinely cannot be vaccinated on health and religious grounds an alternative health beneficial action they could take which would qualify them for the bonus. This solution would be best activated by asking these people to approach you privately. Alternatively, the incentive could be available to all employees once the workplace reaches a certain level of vaccination.
What if an important customer/client or member of the supply chain makes vaccination a condition of doing business?
There is little you can do to challenge conditions of entry, but there are a range of measures you can take.
- Establish whether the policy will be lifted once we are restored to Levels 1 and 2, or once the vaccination roll-out is complete, or once the Government has reopened the borders.
- Inform your employees of the position.
- Encourage those who are not vaccinated to consider vaccination, ensure they have access to expert health advice, tell them they can have time off work to get the shots.
- If you have hold-outs, consider discussing with the client or customer whether their concerns would be met if those workers were redeployed away from client-facing roles or if they were required to wear masks and maintain social distancing while at work.
- If this is not practicable and redeployment is not possible (and the instruction is time-limited), consider agreeing a period of annual leave or unpaid leave.
- If no other suitable alternatives can be found, you may have to consider termination of employment on the basis that there is no work the employee/s can do.
What are my options if staff refuse to work with employees who are not vaccinated?
Employers in these circumstances can lean on the Government’s 4 level regime. If the Government, based on expert advice, has decided that the level of interaction it is allowing is appropriate and safe, that judgement will prevail.
This would mean that a refusal to return to work is a refusal to work – with all of the levers and sanctions under normal employment law available.
Can I ask during periods of community transmission whether employees have been to any locations of interest or are a close contact of someone who has?
Yes, you may. As a PCBU, you have a responsibility to take all reasonable steps to protect the health and safety of people at your workplace. However, you need to have a lawful purpose under the Privacy Act to seek private information so you need to be clear about why it is necessary.
Can I insist on proof of a negative COVID test before allowing them back to work?
Yes. If that employee has been identified as a contact.
Payments raised in government support
The Government has increased the payments available for workers who cannot work from home:
- to $359 under the Short Term Absence Payment (while awaiting COVID test results), and
- to $600 a week for full time workers, and $359 for part-timers (while self-isolating).
Whilst not all of New Zealand remains in lockdown, the Government has clarified that whilst Auckland remains in Alert Level 4 or Level 3, employers throughout New Zealand can continue to seek the wage subsidy if the revenue reduction requirements (and other criteria) are met.
Marie Wisker is a partner, Geoff Carter is a special counsel & Vonda Engels is a senior associate at Chapman Tripp. This article is re-posted here with permission.
40 Comments
Thank, this was very informative. To be honest if I was given a choice between two restaurants, one which was able to post advice to customers that all of its staff where Covid-19 vaccinated and one without any notification, I think I'd opt to dine at the former even if I had to pay a premium. It'll likely be a significant customer service advantage much akin to a good health rating or an open-air dining area with plenty of space between tables.
In practice, since most people are vaccinated, it won't have a major impact on European and Asian staff. Maori and Pasifika are another story.
However, i would point out that we are already in a highly labour-constrained society. Employers in hospitality are going to have little bargaining power in enforcing rules like this.
What will happen is that firms will put up a veneer of concern around Covid for a while. As time goes on, they will start turning a blind eye then finally drop it altogether once everyone stops caring so much. This has been what's happened in the UK, Europe etc for the most part.
As far as I understand it, a business cannot overtly advertise that all of its staff are vaccinated (even if they are) without the consent of all staff, due to privacy concerns.
My view is that businesses will need to be careful about overtly promoting vaccination status of staff, or trying to restrict entry/service to the vaccinated only (unless that is something mandated by the government)
Take a look at Teak Construction - the firm in Auckland that came out last week saying all staff/contractors will need to be vaccinated.
They have been "review bombed" on Google and Facebook, and their social media posts are awash with angry commenters.
This kind of retribution could be fatal for small businesses in hospitality, retail etc that often rely on people checking reviews before heading in to purchase (not to mention if you have poor reviews on Google, your business is less likely to show up if someone searches for a category of business in their area - as Google prefers to show businesses with higher reviews).
The same goes with Leo Molloy's "Headquarters" bar on the Viaduct - take a look at the most recent reviews there and you'll see the same principle in action.
The challenging part for business is you're damned if you do, and damned if you don't.
Push for vaccination of staff/customers, and the anti-vax brigade will damage your business.
Don't push for vaccination of staff/customers, and the pro-vax brigade will damage your business.
I - for one - miss the good old days of not having to worry about the health of the person sat next to me on the bus to work, or in the cubicle next to mine at the office.
Just get your staff together and say you'll offer an XX% pay rise if all staff are vaccinated starting as soon as all staff have returned official verification of vaccination. This way reluctant staff will likely be pressured into it by coworkers.
Chances are you'd be offering an XX% pay rise to retain staff anyway this year anyway so all you're doing is moving a pay review forwards.
Unintended consequences will be bullying within staff. I have a friend who has been pushing his staff to get jabbed because he can see conflict arising if jabbed have to work alongside unjabbed.
After thinking it all the way through he has now decided to step back on taking any position on staff vaccination other than to say he will follow all government requirements. Anything else will be a minefield. He has also reminded staff about the workplace policy on bullying to try and head that off.
In short, if not vaccinated your employment is likely to be terminated.
Employer: Are you vaccinated?
Employee: I am not telling
Employer: I will take that as a no.
Employee: ...
Employer: Our Company policy is that to be allowed on site you must be vaccinated.
Employee: So I can work from home?
Employer: No, company policy dictates you must work on site.
Employee: What site then?
Employer: As above, all sites are covered by our vaccination policy. Will you get vaccinated?
Employee: No
Employer: Why not? is it due to health or religous reasons? and do you have an official exemption to prove that?
Employee: My personal reasons.
Employer: Then unfortunately we have no option but to terminate your employment.
Welcome to the kind new world we live in.
If the company requires proof, is there any requirement for them to disclose how they are storing that data securely and privately?
Considering how poorly most of the small businesses I come across in my day-to-day work handle data storage and security, I would be hesitant to provide any form of health documentation to the average employer.
If employers want this kind of proof, they need to have robust systems in place to keep it secure and be liable for any breaches.
That is a fair trade off.
I've spoken to a couple of employers who've indicated they will ask for vaccination status of staff to keep the "I won't work with any unvaxxed people" crowd happy - as they will communicate to the whole staff that they want to know vax status - but will not follow through on the collection of any proof of vaccination (so it becomes a de facto 'honesty box' system). Don't ask, don't tell basically.
Yes, it is the privacy issues that concern me. We are using covid as a means to enforce all sorts of "temporary" measures.
We don't ask for any other vaccination? so why should we be asked for Covid? What makes it worse than measles? Polio? Rubella? etc...
Will we need to declare other Transmissables diseases (Aids/HIV, Hepatitis, etc...) I thought we had got over all the hysteria for this sort of thing years ago. Obviously not.
And here is what I am telling my employer right now:
I am not going to be vaccinated. I insist on my basic human right to refuse an unproven medical procedure and will pursue asserting this right if required.
Employer: Then you need to be prepared to take the consequences.
My answer: Yes, I am.
My actions: Picked up the phone the same day and talked to 2 prospective employers, making clear why I called and what I can offer. Both are looking for highly experienced new staff due to rapid expansion in the construction sector they supply with key products. One has already indicated verbally in first conversation, that several opportunities are coming up in weeks.
I am daily very proactively talking to other people at every opportunity. Some employers and some construction industry bullies will have a rude awaking very soon when they find themselves struggling to attract good staff at any cost! Those are the same people who advocate the type of stupid discrimination suggested in the very first post here. All of you will get a surprise soon just how many people do not want to be guinea pigs in NZ.
Take health-care for example...I was surprised to hear on RNZ last week only 75% of health care workers have been jabbed. Makes me wonder why. But I doubt they will start sacking them holus bolus because we need them all. And so if they don't mandate jabs for those workers it will be difficult to mandate it for other professions.
As customers demand those around them, visiting them, serving them etc, be vaccinated, businesses will have to transition staff to mandate this request, or carry staff with no productivity. This equals going broke. Accordingly in some cases staff may be able to work from home permanently, or they will have to be replaced/restructure. For businesses that rely heavily on hands on staff (cafes/restaurants etc) this will be a real issue and some will end up shutting or going broke. Same outcome for that vaccine avoider (unemployment) but they force that outcome with all other staff (kind of like a covid infection).
Employees can't find people at the moment. I wonder what they will do when they get rid of 20% of their workforce. I most certainly would not opt into any medical procedure on the instruction of my company and would not want to have to prove that I have been vaccinated any ware, if though I am. I was born under the fascist regime of apartheid in South Africa and know full well what happens to a community through victimizing and discriminating against certain groups of people. Be Careful what you wish for New Zealand, it never ends well.
Questions for the authors: What will define 'vaccination'. Is it one jab, two jabs or only when you've had a booster. Or are employers expected to ask that of their 'customers who demand that staff be vaccinated'?
How long are people considered to be 'vaccinated'. Data tells us that vaccines fade over time. So if we don't get boosters e.g. 8mths after the 2nd jab are people considered no longer to be vaccinated because of potentially low/no effect of vaccine.
Do the authors see this as only being applicable until NZ 'opens up'.
Are employers taking on liability for requiring vaccinations, if, in 5yrs time vaccines are shown to cause long term health issues. Vaccines have around 8yrs lead in time before being widely used. Covid ones haven't had this. Pfizer hasn't got any liability - has the govt accepted liability and come out and said that they guarantee ACC will be the vehicle to cover off that govt liability. If not where does that leave employers liability that effectively are mandating vaccinations in return for to right to work?
Edit- if an employee offered to have weekly covid tests to prove they didn't have covid - would employers still be able to terminate employment. After all a vaccinated employee can still have covid and transmit it. Weekly covid tests - the rapid antigen tests etc is a better guarantee that you have a covid free workforce than having vaccinated staff but who are never having to prove they are infected?? In the UK this is what some schools and some workplaces require.
Boosters are in doubt in many countries overseas, so i doubt they'll ever see the light of day in NZ. ETA March 2022..with expected delays until it's announced they're dropping the idea or it just fades into oblivion. Most people who are double-jabbed will have long lost their protection by the time our government even got close.
Most government departments are struggling to find workers in particular sectors, especially many IT roles so it's unlikely they would widen the current mandates.
Personally, i'd have no worries walking away from a role if there was another that didn't try this mandate on. I'm sure hiring non-COVID vaccinated (don't let the misinformation police say it any other way), it'll be a hiring incentive for many companies wanting staff.
And further to your well recognised likely outcomes, I will add, I may not be the only one keeping track of those companies (and some key individuals), who are very vocal with their advocating to use compulsion by means of mandating so-called safety and healty policy requirements.
Further question for the authors:
Has it been considered a possibility a court being asked to assess if the government agencies have considered thoroughly enough the data available right now from various other countries to arrive at the current public health policies? And if the vaccination compulsion by stealth is being warranted any longer when Israel and other examples clearly show there is no such case to be made to say ‘vaccinated = protection’?
So why would you worry if people in a restaurant or bar are vaccinated or not?
Being vaccinated does not stop you from getting Covid or being able to pass it on, so there is no increased risk to the vaccinated.
I can understand the Govt. putting the threat of a passport of entry out there to scare the lazy or reluctant into getting vaccinated, but the science says if there is an increased threat it is to the unvaccinated.
Really, this type of action is just a prelude to when they open up our borders to overseas people that will have to show a vaccination passport but will be then free to travel and infect anyone in NZ if they have Covid.
Let's be honest here. The pressure to accept a jab isn't really about health. It's about getting the system functioning and the flow of money and resources fully reestablished. If it was about health, not just today, but also of generations to come, only the parts of the economy not contributing to biosphere collapse would be geared up again. Clearly this isn't the case, so obviously the exterminate the virus narrative is in service of the machine. So much deafening virtue signalling, so little genuine concern for the future.
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