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No Shots... Fired?



As the vaccination rollout ramps up throughout New Zealand, many business owners are wondering whether or not they will need to require their workers to be vaccinated. Employment specialist Claire Mansell provides some advice


There’s no doubt that vaccination can be a controversial issue, with people having strong views either way. Unfortunately for employers, whether or not they should or can require employees to be vaccinated is not always clear cut.


NOT CUT AND DRIED

As a starting point, an employer or business cannot force a worker (whether as an independent contractor or an employee) to be vaccinated. Vaccination is considered a medical treatment under the Bill of Rights Act, and everyone has the right to refuse medical treatment. In addition, the Human Rights Act prohibits discrimination on the grounds of ethical and disability (which includes the presence in the body of organisms capable of causing illness, such as Covid-19).


Even asking if a worker is vaccinated may be a breach of a business’ obligations under the Privacy Act, as this information would be considered personal.


EXTENUATING CIRCUMSTANCES

But that isn’t the end of the story. Some work can only be performed by a vaccinated person. By order

of the government, some work at the border can only be performed by vaccinated persons – for instance, workers at MIQ facilities and government officials who work airside at the airport. This group is gradually expanding. The government has recently mandated that many workers in the private sector must now be vaccinated if they are performing at high-risk areas at the border, at MIQ, or workers who regularly handle items removed from ships, aircrafts or managed isolation and quarantine facilities.


Notwithstanding the fact that a business cannot force a worker to be vaccinated, they may still have obligations under the Heath and Safety at Work Act 2015 to ensure that high-risk work is only performed by fully vaccinated workers. Businesses will need to undertake their own assessment of whether or not the work that they undertake should be carried out by a vaccinated person. This will involve undertaking a risk assessment of the work that needs to be performed, not the person that is carrying it out.


ASSESSING RISK

As with all health and safety risk assessments, this should be in consultation with workers and, if appropriate, their representatives. Generally speaking, the business will need to assess the likelihood of the risk occurring, the consequences of that risk, and whether there are any steps that can be taken to mitigate that risk. For some businesses, it will be obvious that there is a high risk that the work carried out may expose the worker to Covid-19 or contribute to it spreading within the community – for instance, where workers are involved in the treatment of patients with Covid-19 or with Covid-19 symptoms. Sometimes the risk won’t be so obvious, for example, those working in public facing roles where they deal with the public on a day-to-day basis.

Without guidance from the courts, it’s difficult for ordinary businesses to determine what is an acceptable risk of Covid-19. For those in the landscaping business, the risk of contracting or spreading Covid-19 is likely to be far less than those who work, say, in a hospital or other medical setting.


The relatively limited interactions with members of the public may mean that the risk is low. In addition, landscapers and others in the construction industry are able to take further steps to mitigate the spread of Covid-19.


This may include wearing face coverings when dealing with members of the public, good hygiene practices, and not attending work when suffering from the symptoms of Covid-19.


However, all businesses should consider its own particular risks – it may be that for some work, the risk of spreading or contracting Covid-19 is high and therefore that work should only be undertaken by a vaccinated person.


If a business decides that the work is high risk and should only be performed by a fully vaccinated worker, it will have obligations to deal with any affected employees in good faith.


At a minimum, this will include a meeting with the employee, explaining the concerns, and determining whether there can be an agreed path forward. If the employee refuses to be vaccinated, re-deployment should be considered.


As always, termination of employment should only be used as a last resort and must be carried out in a procedurally fair manner.


UNCHARTERED WATERS

Understandably, many businesses will be nervous around their obligations in respect of vaccinations. As we are in uncharted waters, it pays to go back to first principles.


Businesses should assess the risk and, if there is sufficient risk, treat the employee in good faith if they are refusing to be fully vaccinated. If these basic principles are followed, businesses can feel confident that they will have a good chance of avoiding any issues, and reducing the risks.



Claire Mansell leads the employment team at Martelli McKegg. She has a particular interest in dealing with Covid-19 related employment problems. She can be contacted at claire.mansell@martellimckegg.co.nz. This article is not intended to be relied upon as legal advice.

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