COVID-19 vaccinations are now on the list of topics to avoid at dinner parties (which are still virtual for those of us in Auckland).  Globally, we have seen COVID-19 vaccinations create mixed emotions around civic responsibilities and bodily autonomy, and spark protests in breach of many “stay at home” orders.  In New Zealand, the pressure is now on employers and private organisations to decide whether they will require their employees (and other workers) to be fully vaccinated against COVID-19.  This is no easy task.

Over recent weeks, there has been significant debate on whether employers can mandate vaccinations for their work force, some of which has been played out in the courts.  The result of this debate is that many employers are still unsure of what they can do.

However, Delta has changed the game for all of us.  For this reason, we consider that it is open to employers to implement mandatory vaccination requirements for both existing and new employees.  We acknowledge that there are views and arguments to the contrary, and that to date, neither the Employment Relations Authority nor the Employment Court have ruled on the legality of this approach in a broad sense.  But on balance we remain of the view that such an approach is legally permissible, so long as privacy rights, health and safety considerations, and individual employee cases are considered as part of an employer complying with consultation obligations and statutory duties of good faith.

Our view is that vaccinations will become (and some would argue they already are) a key tool in managing the health and safety risks COVID-19 creates, as well as ensuring business continuity and New Zealand’s reintegration back into the global economy as borders reopen.

This article looks at the current state of play for vaccinations and where to next. [1]

Health and Safety assessments

New Zealand’s health and safety legislation [2] requires all Persons Conducting  of a Business or Undertaking (PCBU) – which includes employers – to take all reasonably practical steps to eliminate harm, or if that is not possible to minimise harm, to workers and others in the workplace.  To understand whether an employer can mandate that roles are performed by vaccinated workers only  to comply with its health and safety duties (to eliminate or minimise harm), employers must perform a health and safety risk assessment.

This health and safety risk assessment requires PCBUs to consider two factors:

1. the likelihood of a worker being exposed to COVID-19 while performing the role; and
2. the potential consequences of that exposure for others.

If an employer determines that there is a “high” risk associated with these factors, it is reasonable to require that employees who perform the work are vaccinated.

Likelihood factor

To satisfy the likelihood factor, employers must consider that the environment in which the employee works (and any other locations the employee is required to physically attend) carries a high risk of exposure to COVID-19.  Our view is that many employers will be able to make a case that this factor is, or will be, made out.  There also appears to be a reasonable prospect that travel (such as on Air New Zealand) will require passengers to be fully vaccinated – so if travel is required as part of an employee’s role this will be a relevant factor as well.

The primary reason for this is that as we shift down alert levels with COVID-19 present in the community, all employees are at an increased risk of being exposed to COVID-19 in the workplace.  This risk is due to the transmissibility of the Delta variant and is one that will only increase as employees return to work and return to in person interactions whether in their professional or private lives.

Importantly, this risk factor is not going to be a static assessment.  Like the virus, this assessment will need to adapt to alert level changes and New Zealand’s border settings.  What could be unlikely now, could be highly likely as alert levels shift, border settings change or more infectious variants of the virus evolve.

Consequence factor

This is an easier risk factor to consider.  For any employer, the potential consequence of one of its employees being a transmitter or super spreader is significant from a health and safety, business continuity, and reputation perspective.  This is because it is not possible to know the extent of any consequence, due to those consequences being highly personalised.

The consequences of Delta are material and wide-ranging, and no employer wants to be responsible for a community outbreak that could cause serious harm or be fatal.

Other minimum control measures?

Employers are required to consider other available control measures, and the extent to which those control measures minimise the risk of infection (so far as is reasonably practicable).  This is because vaccination, on its own, is not a silver bullet to infection and transmission.

However, coupled with the adoption of other pandemic specific measures [3], there is a strong case to be made that vaccination (which significantly decreases the effect and transmissibility of COVID-19) is a control measure that is a reasonably practicable step to take.  As we begin to live with COVID-19 in the community, when New Zealand’s borders reopen, and more workplaces and hospitality venues open, saliva testing will be another control measure to be considered by employers as part of their toolkit.  However, more Government guidance will be required on this.

We observe that many individuals may consider that an effective control measure is working from home on a permanent basis.  However, our view is that while it may be possible to work from home, this is not the best business structure for many employers, and it is unlikely to be a suitable permanent alternative.  It also runs the risk of creating division within the workforce, with more burden falling on those who are vaccinated and therefore able to physically return to work, interact with customers and clients, and undertake necessary business travel.

Vaccination requirements

If an employer determines that, following its health and safety risk assessment, workers in roles need to be vaccinated, it must implement this decision in a fair and reasonable way.  This includes complying with its consultation obligations and duties of good faith to employees.   Under the Health and Safety at Work Act 2015, employers (and other PCBUs) must consult, cooperate, and coordinate on the management of COVID-19 health and safety risks arising out of the workers’ activities with other organisations who have overlapping health and safety duties in the workplace.

If a current employee refuses to be vaccinated, an employer must consider whether it could temporarily (or permanently) redeploy that individual to another lower-risk role, or whether that individual could feasibly work from home, before thinking about taking a dismissal route.  To combat the risk of unjustifiable dismissal claims, employers should be thorough in their risk assessment and transparent with all employees during any consultation process on a vaccination requirement.

There is more leeway for employers to require new hires be vaccinated, or to disclose their vaccination status.  Current guidance from the Ministry of Business, Innovation and Employment (MBIE) provides that businesses can only ask job candidates if they are vaccinated when it is justified by the requirements of the role.  MBIE’s position appears to suggest that it would only be reasonable to ask about an applicant’s vaccination status if a business decides, following a risk assessment, that certain work can only be performed by a vaccinated person.  However, we consider that it is open to employers to take a broader approach by relying on a health and safety risk assessment carried out for its entire workplace (and workforce) when considering this issue.

Advice should be sought before adopting a mandatory vaccination approach in New Zealand to mitigate employment, privacy, and discrimination related risk, noting that this is a finely balanced issue that is untested in the courts.

Where to next?

Government has signalled that it does not intend to mandate vaccinations outside of those roles currently covered by the Vaccination Order.  Employers are therefore grappling with the interplay of employment law, privacy law, health and safety law and discrimination law.  Each organisation needs to consider how it wishes to navigate these issues in a way that protects its workers and its business continuity having regard to applicable guidance and with the benefit of advice as needed.

Against that uncertainty, one certainty is that as New Zealand (and the world) moves away from an elimination setting that means zero cases, assessments of risk will need to change as the risk profile and context in which we are living and operating businesses and organisations changes.

Many organisations are currently taking a leadership position on the topic to encourage vaccinations by:

• Providing information about vaccination.
• Encouraging vaccination for its workers.
• Providing time off without loss of pay to be vaccinated.
• Providing incentives to be vaccinated.

Others, particularly in health care and aged care environments are undertaking risk assessments using the two-pronged approach set out above and in WorkSafe’s current guidance (as at the time of publishing this article).

Looking ahead, topics of conversation for employers to consider will be what their minimum staffing levels are and whether split shifts for business continuity planning is also required.  Experience overseas highlights that when there is COVID-19 in the community more workers will be off sick than has been the case in the past.

Does your business have a plan for that?  If not, it is time to put one in place.

Footnotes:

[1] This article focuses on employers who are not covered by the COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccinations Order) as the position is more complex given the absence of Government regulation.

[2] Health and Safety at Work Act 2015

[3] Such as use of personal protective equipment, use of the COVID-19 tracer app, regular washing of hands, and encouraging staff to stay away from the workplace while they have symptoms or while any other COVID-19 risk factors exist.