• Peter Bateman
    189
    Employment lawyer Susan Hornsby-Geluk has raised this issue in a piece here published by Stuff.

    She writes: "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."

    With vaccines expected to become available in New Zealand in the next few months, is this something that health & safety policies will have to accommodate?
  • Steve H
    43
    She's working on the assumption that once someone has been vaccinated, they will not be able to contract the virus and infect co workers or clients I assume. It's not proven yet that any of the vaccines will prevent a vaccinated person from doing that pssst vaccines can't guarantee covid immunity

    No doubt getting vaccinated is a good and desirable thing, but it may be that they aren't going to be quite the game changer we're all hoping for.
  • robyn moses
    28
    And if a worker getting a vaccine as a requirement of their employer, becomes one of the statistics (fatality/life long disability) listed on Vaccine Adverse Event Reporting System (VAERS) what then, is the company liable?
  • Sheri Greenwell
    211
    This will be an interesting topic to follow. At the moment, there is (understandably) quite a lot of concern around exposure and transmission, but decisions should be made based on appropriate risk assessments, not assumptions and not on "broad brush" approaches that seek to just make the issue go away.

    What's the current position on regular flu vaccinations? Although many employers offer them to employees, I don't think they are being made mandatory, unless they were included in employment contracts.

    There are still so many unknowns about short-term and long-term effects (as well as a scary amount of misinformation!), and as Robyn commented above, overseas experiences also highlight associated risks such as vaccination side-effects, Covid-19 infections, and "long Covid" ongoing effects. The health and wellbeing of individual workers needs to be given due genuine and appropriate consideration by way of meaningful risk assessments, not just commercial reasons, and employees' views should be included and taken into account.

    Perhaps - especially at this early stage with so many unknowns - employees should be given relevant information and the opportunity to make an informed decision about their own health and wellbeing. Companies already give workers opportunities to make informed decisions whether or not to participate in workplace health surveillance checks, to opt out if they prefer. Shouldn't this work in a similar way?

    In addition, Employment Relations legislation may collide here with employee health intentions. From what I have seen so far, an employer that wants to implement mandatory vaccination cannot do so without proper consultation as required by ER Act, and company management systems such as employment contracts, policies, processes, etc would need to be updated to reflect these expectations for existing or subsequent employment agreements.
  • Michael Wilson
    80
    You will always have staff who choose to be part of the control group due to fear of needles, fear or the unknown or fear or Bill Gates putting microchips in their blood to he can track them while the go to the supermarket.

    I have had the question asked about once a week for the last two months. My position would be unless you are working in healthcare or border work it is unlikely that you could argue that they require it for hazard management.
  • Sheri Greenwell
    211
    Can employers require employees to be vaccinated?
    With today's announcement that a COVID-19 vaccine has been approved for use in New Zealand, attention will likely soon turn to practical implications. Can employers require employees to be vaccinated?

    This is yet another issue in which New Zealand's employment law is being required to react to, and address, COVID-19 related circumstances. For the reasons set out below, our view is that in most circumstances it will not be lawful for employers to make vaccination compulsory for employees without also contemplating exceptions or carve outs to any compulsion, as appropriate.

    There is no legal issue with an employer strongly encouraging vaccination – including having this occur in-house (if this is possible, given the vaccine roll-out) or during work time. The issue is the extent to which an employer can require employees to be vaccinated, and then take disciplinary action to enforce the obligation. The question is therefore whether requiring an employee to be vaccinated is a 'lawful and reasonable direction'. There are a couple of factors to consider in this assessment.

    First, a vaccination is medical treatment. The New Zealand Bill of Rights Act contains a right to refuse to undergo medical treatment. While the Bill of Rights Act does not apply to private activities (including private sector employment), it is likely to be relevant to the question of lawfulness and reasonableness, including of workplace directions.

    Second, we anticipate employers will seek to justify a mandatory vaccination direction on health and safety grounds. But, New Zealand is Covid-free (or close to it) and the vast majority of workplaces are currently operating normally (or close to it) without vaccination. As such, for most workplaces the vaccination status of one individual is unlikely to make a material difference to health and safety – at least in our current environment. On this basis, it may not be reasonable to direct an employee to be vaccinated over their own personal objections (even if there are situations where such objections may not be reasonably held). This will depend on the nature of the work performed by the individual (eg it may be reasonable in some roles, such as health or aged care workers).

    Third, the Human Rights Act prohibits discrimination on specified grounds. The specified grounds include "ethical belief". While this has traditionally been interpreted as the lack of a religious belief, it could conceivably capture someone who is anti-vaccination. If so, an employer could not lawfully discriminate on this basis. This is, however, subject to such belief not unreasonably disrupting the employer's activities (although the onus is on the employer to establish that accommodations would amount to unreasonable disruption). Again, that is likely to be dependent on being able to demonstrate that there is a health and safety risk.


    Where does this get us?

    Strong employer support for vaccination is lawful. Making vaccination compulsory for employees may not be lawful unless an employer indicates a willingness to consider exceptions. Exceptions could be targeted at employees who are not able to be vaccinated for physical health reasons, but could also consider the circumstances of anyone who has a philosophical objection.

    People who decline to be vaccinated could be required to work from home (if possible, under employment agreements and given the nature of the relevant role). Again – this will likely depend on the particular circumstances of the workplace.

    From Russell McVeagh:[url=http:// https://www.russellmcveagh.com/insights/february-2021/can-employers-require-employees-to-be-vaccinated ] https://www.russellmcveagh.com/insights/february-2021/can-employers-require-employees-to-be-vaccinated[/url]
  • Steve H
    43
    Slightly to the left of OPs question, what about Covid 19 Tests, can they be mandated by an Employer on H&S grounds (they can be required by the Minister or Director General of Health)
  • Sherralynne Smith
    8
    Perhaps Covid19 tests can be mandated by an employer under Section 45? Interested to hear others thoughts on this.
  • Dianne Campton
    45
    I don't think many companies would be able to force the point by making vaccinations mandatory if the Government is not prepared to make it mandatory.
    I feel this is will need to be treated like the flu vaccinations - strongly encourage and support people to get vaccinated but you can't, as yet, penalise them for not being vaccinated. Some countries are introducing a rule that if you cannot prove you have been vaccinated you will not be allowed to enter. This may force some companies hands, where their people are required to travel internationally when this is available - long way off yet.
  • Steve H
    43
    Some countries are introducing a rule that if you cannot prove you have been vaccinated you will not be allowed to enter. This may force some companies hands, where their people are required to travel internationally when this is available - long way off yet.Dianne Campton

    20210227edhan-a.jpg?resize=807x807

    Perhaps Covid may advantage older kiwis wanting to work on past 65
  • Rachael
    85
    Surely this vaccination point is no different from any other vaccination?

    Assuming the vaccine is not mandated by govt, I imagine the worst that can happen is that companies go the way schools have for MMR. Vaccination certs are required for all students, if unvaccinated and there is an outbreak at the school the student has to stay home.

    Or have I missed something?
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