Covid-19: Can employers make vaccination mandatory?
12 April 2021 03:32
By Susan Hornsby-Geluk, General Editor, Employment Law Bulletin
OPINION: The first shipment of the Pfizer vaccine is due to reach New Zealand by April and will be available to border staff and essential health workers in the first instance.
A rollout to the general public is then expected to occur from mid-late 2021 and into 2022. Current indications are that at least 70 per cent of the population will need to be vaccinated in order to achieve herd immunity.
Meanwhile the anti-vaxxer movement is already creating suspicion about the safety of these vaccines, with many saying they will not take the jab.
Here are some facts – you cannot get Covid-19 from being vaccinated as vaccines do not contain “live” or “active” pathogens. Instead they contain “instructions’ which teach cells how to create their own vaccines and to trigger the immune system.
Despite the science, there will always be a group of people who for philosophical, or potentially religious or health reason, do not wish to be immunised.
This raises questions from an employment perspective as to whether an employer can require employees to be vaccinated and/or refuse to employ those who are not.
In the UK last week there were stories of employers introducing “no jab, no work” policies, and this is likely to become an issue here also as vaccines become available.
Legally, the starting point is that vaccination is a medical treatment, and under the New Zealand Bill of Rights Act, this requires informed consent. In other words it could not become mandatory without a law change, which is highly unlikely.
This is not to say that an employer could not make proof of vaccination a term of employment for new employees. Subject to breaching the prohibited grounds of discrimination in the Human Rights Act, an employer can place any reasonable conditions on the employment of new staff.
In terms of the prohibited grounds of discrimination, the relevant exceptions would include where an employee’s religious beliefs or a medical condition prevent them from being vaccinated. With regard to religious beliefs, this exception is subject to not unreasonably disrupting the employer’s business.
Therefore the question becomes whether the fact that an employee is not vaccinated genuinely creates a health and safety risk that the employer cannot reasonably accommodate.
Similarly, in respect of the medical conditions exception, an employer cannot discriminate against an employee with a “disability” if it can take reasonable measures to reduce the degree of risk of harm to a “normal level”.
Given that New Zealand workplaces have continued to operate more or less safely up until now without the added protection of vaccines, it may be difficult for employers to take the position that people who cannot, or will not, be vaccinated have suddenly become a significant risk.
To justify such a view it is likely that the risk profile would need to increase, for example by new cases of community transmission, and a case by case assessment undertaken in each instance.
In the meantime, if employers do feel strongly about it, they can start including clauses in employment agreements making vaccination a condition of employment for new employees, subject to these limited exceptions.
Different issues arise in respect of existing employees as imposing new and different conditions of employment is not generally lawful and would only be justified on serious health and safety grounds.
In other words, an employer could encourage existing employees to be vaccinated, and may be entitled to request proof of this in high risk sectors, but could not make it mandatory.
Further, an employer is unlikely to be able to dismiss an existing employee who chooses not to be vaccinated unless the employee works in a high-risk area and there is a real and imminent health and safety risk.
The employer would also need to explore all reasonable alternatives to dismissal such as allowing the employee to work from home or in another area, or on alternative duties, for a period of time.
The topic of vaccination will inevitably evoke strong reactions. Many people will hold strong views either in favour of, or against vaccination, and these will likely be genuinely held in most cases. Therefore employers will need to take a sensitive approach to this issue – imposing blanket rules such an mandatory vaccination is not likely to support good faith employment relationships, and may also be unlawful in some instances.
Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers and General Editor of the LexisNexis® Employment Law Bulletin.