Employer attention is increasingly focused on how to deal with the jab-reluctant in the workplace. Here are comprehensive answers to common questions

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.

1. 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.
2. Consider whether safety can be served by requiring the employee to wear PPE and maintain social distancing.
3. In the absence of any other solution, consider redeployment.
4. 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.

1. 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.
2. Inform your employees of the position.
3. 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.
4. 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.
5. 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.
6. 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.