Can Employers Require Vaccinations?

After a slow start the New Zealand vaccine roll-out is now charging ahead, spurred on by the Delta outbreak. The outbreak has also given many employers cause to think about how they can foster vaccinated workplaces. But can employers actually require their employees to get the vaccine?

Workers that are subject to the COVID-19 Public Health Response (Vaccinations) Order 2021 are “affected persons”, and employers of affected persons are actually required to ensure their workers are vaccinated by dates specified in the Order, unless an exception or exemption applies. Affected persons are basically workers performing roles associated with the border or MIQ, including now port workers.

However, for current employees that perform work that is not subject to the Order, it will be much more difficult for employers to require vaccinations. This is due to the Bill of Rights Act which gives all individuals the right to refuse medical treatment, including vaccines, and the Human Rights Act 1993 and Employment Relations Act 2000 which make it unlawful to discriminate against employees on the basis of religious belief or disability. However, considering the very real risk of Covid-19 (especially Delta), it may be lawful for employers to require current staff to be vaccinated where:

• They perform roles that are at high risk of catching or transmitting Covid-19 (especially to vulnerable co-workers or customers liked aged care residents);

• The employer has conducted a thorough health and safety assessment in good faith consultation with workers and unions;

• The employer has fairly considered the timing of a vaccination policy, having regard to the vaccine roll-out status;

• The employer has considered any exemptions that might apply due to religious belief or disability.

If an employer wishes to dismiss an employee who refuses to get vaccinated, the dismissal must be “fair and reasonable” in the circumstances. This will mean that the employer must have undertaken a health and safety risk assessment (including considering all other health and safety measures available) to determine whether it is fair and reasonable to require the role be performed by a vaccinated person and to dismiss an employee due to their vaccination status. This will require consideration of alternatives such as redeployment or a change of duties.

Things are a little easier for prospective employees. Employers can stipulate that being vaccinated is a requirement for employment roles based upon risk assessments they have done. They can also ask job applicants to disclose their vaccination status, or whether they are willing to get vaccinated. If so, employers should state that applicants do not need to disclose their vaccination status, but if they do not they will be treated as being unvaccinated. Applicants should also be given the opportunity to provide information such as any religious belief or disability that may cause them to not get the vaccine. Employers can then decline to offer a job to an unvaccinated person (or a person who is unwilling to get vaccinated), so long as it is not for a medical or religious reason (which would likely be prohibited discrimination).

Further, while employers cannot compel current or prospective staff to disclose their vaccination status, they can ask about it as long as it is relevant to their role. Employers can also refuse to allow staff that won’t disclose their vaccination status to work in certain roles, based on the health and safety risk assessment.

Many employers will be anxious to see their workforces vaccinated. However, it is not a straightforward process. Creating and enforcing vaccination policies will require health and safety risk assessments to be undertaken first and for employers to act in fair and reasonable ways towards their staff. But there is nothing wrong with encouraging staff to get vaccinated, and hopefully a little encouragement is all that will be needed.