• Peter Bateman
    228
    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
    220
    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
    45
    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
    290
    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
    113
    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
    290
    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
    220
    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
    9
    Perhaps Covid19 tests can be mandated by an employer under Section 45? Interested to hear others thoughts on this.
  • Dianne Campton
    69
    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
    220
    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
    98
    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?
  • Steve H
    220
    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.Rachael

    What about their wages/salary in that case Rachel, does the employer have to pick up the tab for their choice not to protect themselves?

    With the vaccine rollout, we aren't quite at this point, and the need to substitute Dr Ashley for Fauci

    EVRYR3JWBNANHH4IJZI7ZBS7JM.jpg&w=540

    Washington Post - Are We There Yet?
  • Sheri Greenwell
    290
    It's complicated....

    This is another example where HSWA, Employment Relations Act and Human Rights Act collide.

    While requirements for vaccinations can be included in new employment contracts, the requirement cannot be unilaterally imposed on workers, particularly where the person objects on the basis of health or religious beliefs, and employers cannot discriminate against people who don't wish to be vaccinated. Likewise, any changes to existing conditions of employment require consultation and agreement under the ERA.

    Reading between the lines, I think there is a reasonable argument for conducting a practical and meaningful risk assessment to justify any demands for everyone to be vaccinated.
  • Dianne Campton
    69
    Let's take emotion out of the picture and focus on a risk based approach. Companies will need to determine the risk of exposure to COVID-19, what controls they already have in place, and if those controls are effective to avoid potential contact with the virus. If so, then vaccination should remain voluntary. If however, as in the case of Immigration and quarantine staff, the risk is elevated to a more than likely chance of contact and therefore mandatory immunisation or proof makes sense. People still have the choice. If they choose not to have it they need to work in areas where exposure is limited or negligible. If governments impose a requirement as entry into their countries of proof of immunisation, then the choice is - get immunised or you can't travel. If there are work requirements under those circumstances, then it becomes an employment issue where the employee fails to follow a fair and reasonable instruction. The company then has the right to reassign the employee to another position or terminate their employment if it is a key part of the role. Any employer should be having these conversations with their workforce now so nothing becomes a surprise and ends up in Employment Court. The old adage - Consult - Communicate - Consult. You can never do enough of this.
  • Steve H
    220
    Slight digression from topic into Covid generally, and only for very mature audiences that watched TV in the 70's M*A*S*H and Covid
  • Steve H
    220
    So push has come to shove on the boarder, with some Customs Workers having their employment contracts terminated because of their refusal to be vaccinated, it will be interesting to see where this goes.
  • Andrew
    324
    An employer needs to have a justifiable reason for the dismissal.

    In terms of justification I would be first looking at engineered controls between the Customs worker and a covid infected person - which would naturally look at work flows / processes.

    Then I would look at the last line of defence - PPE.


    Seems to me if we are relying on compulsory employee vaccinations we are saying our controls don't work - and we'll just pass the onus onto the employee.

    Is this a sufficient justifiable reason for firing a person.

    And then you have the issue with the Human Rights Act which creates a problem for discriminating against people based on their health status.

    I'm looking forward to the case law that should inevitably follow from this. (I'd be in no hurry firing anyone)
  • Steve H
    220
    Thing of it is, the PCBU is legally required to comply with COVID-19 Public Health Response (Vaccinations) Order 2021 , so PPE/ workflows/etc are somewhat spurious, the NZ Government requires that boarder workers be vaccinated from May 1st end of story, so a PCBU in this situation has the options of:
    • Redeployment to another role within the organisation that isn't covered by this order of the
      employee refusing to be vaccinated (if there is one and the employee will accept it)
    • Terminating the employee refusing to be vaccinated (surely an option of last resort)
    • Ignore the law, and face prosecution (under the regulations, so would the refusing
      employee)

    So life somewhere between a rock and a hard place for PCBUs covered by this regulation.
  • Chris Peace
    63
    Check out the decision in WorkSafe NZ v Rentokil Initial Limited in 2016. The following are extracts from the decision in the District Court. (Suppressed was the name of the employee). The full decision can be downloaded from the Chief Judge of the DC website.
    "[18] In 2007 the defendant established a policy requiring candidates for specific roles, including [suppressed], to be tested to establish whether they were immune to Hepatitis B as part of the pre-employment screening process. If the candidate was not immune to Hepatitis B, the defendant would offer the candidate Hepatitis B vaccination."
    "[24] Upon investigation by WorkSafe, it was established that [suppressed] and one other employee, who started in 2014, were not offered vaccination against Hepatitis B at the outset of their employment."
  • Steve H
    220
    Question, for a vehicle over a given mass, the law requires it be driven by a person holding a license of a suitable class, as an employer I can't use PPE, I can't use engineering controls, I have to employ a driver with the requisite class of license. It's a legal requirement that I, and the driver of my truck must comply with, simple man that I am, how is this situation fundamentally different from the legal requirement that boarder workers from the 1st of May 2021 must be vaccinated?
  • Thomas Hayes
    3
    You are right to take emotion out of the picture and focus on a risk based approach, the risk is the issue here.
    However there are risks involved with getting vaccinated as well and these also need to be assessed. I believe we a a long way from knowing all the possible side effects and employers could be in a vulnerable position if they expose their employees to these risks by "making" them have a jab.
    There are too many unknowns on either side of the coin. I will be recommend my directors that they should stay away from influencing employees decisions in this matter and simply prepare the business for a possible outbreak by assessing the current risks only.
  • Michael Wilson
    113
    Dilbert's creator Scott Adams has some very "interesting" political views which may have influenced that cartoon.
  • Steve H
    220
    He also said there was no requirement in the New Zealand Bill of Rights or any other piece of legislation that said that secondary legislation could not contain a provision that limiting one or more rights set out in the bill of rights.

    The judge said section 11 of the bill of rights provided that everyone had the right to refuse to undergo any medical treatment.

    The court’s task in this case was to balance the benefit of the vaccine and the risk of being unvaccinated against any discrimination in relation to those affected, he said.

    He dismissed the woman’s application and suppressed her name.
    Justice Peter Churchman

    Looks like sanity prevails Former border worker who lost her job after not getting jabbed loses High Court challenge
  • Don Ramsay
    87
    Personally, I believe that the requirement for having the vaccine will not come from us, but from our customers who will possibly place that requirement prior to working on sites. We are watching with great expectations to see what the EMA will do and that will guide our process. And Steve has already pointed out the latest court ruling so that may lay the path for future actions....
  • MattD2
    237
    Looks like sanity prevails Former border worker who lost her job after not getting jabbed loses High Court challengeSteve H
    However this is only determining if the COVID-19 Public Health Response (Vaccinations) Order 2021 requirement for border workers to be vaccinated for specific work was against the Bill of Rights - It sounds like they will also be taking the case to the Employment Court for a ruling on how she was dismissed. So basically the decision was that the government ordering you to be vaccinated if you want to do specific work does not impede on your right to decide not to get vaccinated.

    It will get trickier in employment court, but it will come down to if the employer acted in good faith during the process the resulted in the termination of the employment contract.
    As it stands the worker has decided to not get vaccinated (as is their right to do so) and the employer has said "only vaccinated people can do the role that you have been employed for" (and also under the government's vaccination order the worker has a responsibility to not do that role - assumption is the role is listed in sch2 of the order).
    Now to the actual issue - how the worker was treated; basically if the employer said "you have to get vaccinated or your fired" that is not right, but if they said "anyone doing your role is required by the government to be vaccinated, and unfortunately we do not have any other positions available that you would be suitable for, therefore we will have to let you go". (you have already kind of hit on this thought)

    The main problem is that this only relates to specific roles covered under the vaccination order... and therefore the decision by the High Court provides very little to the conversation about requiring vaccinations in general workplaces
  • Steve H
    220
    The main problem is that this only relates to specific roles covered under the vaccination order... and therefore the decision by the High Court provides very little to the conversation about requiring vaccinations in general workplacesMattD2

    Absolutely true Matt, but it does clarify that vaccination is mandatory under COVID-19 Public Health Response (Vaccinations) Order 2021 for specific roles, and as other roles get added to that, or subsequent orders, it gives PCBU's subject to those orders confidence to obey them.

    As for the wider body of employment law, it will be a mine field and I don't envy anyone having to negotiate customers demanding to know the vaccination status of anyone a PCBU sends to their site, or staff refusing to work alongside other staff without knowing their vaccination status.
  • Craig Marriott
    203
    This from the government's employment NZ website (my emphasis):
    Businesses cannot require any individual to be vaccinated. However, businesses can require that certain work must only be done by vaccinated workers, where there is high risk of contracting and transmitting COVID-19 to others. This will be a minority of all work in New Zealand. This could change if there is a significant shift in the COVID-19 situation domestically.

    There appear to be two reasons that businesses can impose vaccination requirements - one is if the role is specified within a health order, much of which is confirmed by the case law referred to earlier in the thread. The second is if there is a risk-based reason for doing it. This seems unlikely in most cases, but this may change if there are major outbreaks, for example. This seems reasonable advice and aligns with a sensible risk-based approach. WorkSafe's guidance around the need to risk assess is also fairly clear. There seem to be a number of knee-jerk blanket rule approaches that are beginning to appear. These seem, on current advice, to be ripe for legal challenge.
    I have heard of one (not sure if it's being implemented, but from a very good source) where plans are afoot to separate vaccinated and unvaccinated workers. It would seem to me that unvaccinated workers are your most vulnerable (whatever their reason). Putting them all together with all the other unvaccinated people looks like the best way of getting the cumulative risk to your workforce as high as possible from this particular hazard. People need to think very carefully about their plans and what they are trying to achieve.
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