The rollout of the COVID-19 vaccine will likely play a vital role in protecting the health and well-being of Kiwis over the coming months and have a massive impact on the social, economic, and cultural recovery. It also promises to have big implications for employers and employees.

Right to refuse

A lot of employers are wondering if their employees have the right to refuse the vaccine.

Under the Bill of Rights, employees have the right to refuse medical treatment. But under the Health and Safety at Work Act, employers have health and safety obligations which, in summary, requires the provision of a safe environment for employees and customers. It is a delicate balancing of interests in an unprecedented situation.

To try and avoid the situation arising in the first place, we recommend that employers explain the importance of getting vaccinated and encourage their employees to do so instead of making vaccination a requirement. Start by reminding employees of the greater good. The Ministry of Health guidelines that state: “By having the vaccine you’ll be playing your part to protect Aotearoa. The COVID-19 vaccine will help protect the team of five million, and safeguard Aotearoa. It will save lives.”

Risk assessment

In accordance with the Bill of Rights, employees cannot be forced to take a vaccine and we recommend that employers do not take a “no jab, no job” stance. There are a number of things employers need to think about if an employee refuses the vaccine. The first is whether they need the employee to be vaccinated in order to provide a safe working environment.

If employers think a role in their business needs to be performed by a worker vaccinated against COVID-19, they need to assess the role’s exposure risk to the virus. WorkSafe New Zealand has some helpful guidance including two key factors to consider when assessing specific roles:

  1. The likelihood of a worker being exposed to COVID-19 while performing their duties; and
  2. The potential consequences of that exposure on others, e.g., community spread.

If the risk is minimal, then any action taken against an employee is unlikely to be justifiable. A common-sense approach is needed. A lot of this is about common sense and not rushing to conclusions. If an employee says that they have not taken the vaccination, you need to find out why. You need to understand the reasons for it.

It would be hard for frontline workers dealing with the sick or elderly (particularly those who are currently required to undertake regular COVID-19 testing), to opt out of the vaccine because by doing so their employer could argue they are compromising the risk of everyone they come in contact with.

In that case, the employer ought to consider introducing a policy that requires all employees to get the vaccine. This would need to be done after consultation. If an employee refused to have the vaccine after the policy was lawfully introduced, the employer would then need to consider the employee’s reasons for refusing the vaccine before taking any adverse action against the employee. For example, they may have concerns for medical reasons.

Employer options

Employers cannot require an individual to be vaccinated but there could be a situation where they may be able to justify not paying an employee. The fundamental principle is whether an employee is ready, willing, and able to work. If they are ready, willing, and able to work, then they should be paid. But if an employee refusing a vaccination means they are unable to work, employers may be justified in not paying them.

It is going to be different for each business. Say you are running a three-car garage in a small town, you may not have many options other than not paying the employee, whereas for larger organizations there is likely to be alternative roles available for the employee to be redeployed to so they’re not in the frontline and putting others at risk.

If that does not work, you might want to start thinking about other options, for example leave without pay, or maybe agreeing to use holiday pay. Only after you have done that and gone through a fair and reasonable disciplinary process can you even consider dismissal.

Regardless of an employee’s reasons for refusing the vaccine, employers will need to think long and hard about the alternatives to dismissal before sacking an employee. In most circumstances, dismissal for refusing the vaccine will likely be extremely hard to justify.

If you have any questions, please contact us at Aspiring Law.

 

Employment & HR