Edmonds Judd

To jab or not to jab?

To jab or not to jab?

Your employee doesn’t want a Covid vaccination?

While many Kiwis are queuing up and eagerly awaiting their Covid vaccinations, not everyone is willing to take ‘the jab’. Recent headlines of sacked border staff who refused their Covid vaccinations have highlighted the difficulty many employers will face in deciding if their staff can reasonably be required to be vaccinated.

Dismissing one of your employees on the basis of vaccination status is not as straightforward as it may seem and, in most cases, will be grounds for a personal grievance.

Special legislation covers border workers and others

Many of the statements made in this article do not cover border workers and associated roles. The COVID-19 Public Health Response Act 2020 and the COVID-19 Public Health Response (Vaccinations) Order 2021 identifies affected roles that, by law, must be carried out by a vaccinated person.

The right to refuse

The general right for New Zealanders to refuse any medical procedure or treatment is entrenched in the Bill of Rights Act 1990. You cannot, therefore, force any person in this country to be vaccinated.

As an employer, you are also not entitled to change an employment agreement or terms without agreement from your employee; consultation, and cooperation, with your employees is essential when asking them to be vaccinated.

Asking staff to get the jab

The first step you must take is establishing whether there is a role that, after a health and safety risk assessment, you reasonably decide must be done by a vaccinated employee. This may be due to a high interaction rate with tourists, working with vulnerable people such as rest home residents or some other valid reason.

If you decide that a particular role reasonably requires vaccination, you can ask your staff in those roles if they will agree to be vaccinated. The process will be similar to a restructure, where employers must first consult with staff. The identified staff should be asked — not told — if they are comfortable receiving the vaccine. You should offer to pay any associated costs with getting the vaccine, if required, and give your employee paid time off to receive it.

Refusing the jab?

If your employee refuses a vaccination, you must think about the alternatives for that person. This could include assessing whether your employee can just as successfully complete the role in a protected manner by wearing a mask, gloves and frequently using hand sanitiser. If the answer is still that the role must be held by a vaccinated person, then you must — in good faith — try to redeploy that person elsewhere in the business. Do ensure your employee is engaged in this process so they can assess themselves what roles could be suitable.

When is dismissal justified?

In the very rare case that you have, in good faith, assessed the role as absolutely requiring vaccination, reviewed all alternative roles and duties for your employee and considered all available restructures to keep them on the staff, and there is still no mutually acceptable solution, then a dismissal might be justified.

Out with the old, in with the new

In this Covid climate, some employers may be tempted to only hire vaccinated staff from now on and, as each staff member leaves, replace them with someone who has had the vaccine.

Employers should be very careful to only look at a potential employee’s vaccination status for roles that are assessed (in good faith) to need a Covid vaccination. If you only hire staff who have been vaccinated, or advertise all roles as requiring vaccination when they actually do not (such as an isolated back office job), you could be open to a claim of discrimination under the Human Rights Act 1993.

Right now, no one is sure how many New Zealanders will refuse a Covid vaccination. What is clear, however, is that all employers must be very careful to ensure they continue to act in good faith when making any employment decision regarding the Covid vaccination status of current or future employees.

Every workplace is unique in its requirements and additional care must be taken to ensure you do not discriminate against any of your employees.

If you are thinking about some workplace changes to accommodate vaccination status, please contact us for specific advice to suit your particular situation.