Today (26 August 2021) ‘affected’ people – being people working in managed isolation and quarantine facilities, airports and aircrafts – are required to have had their first dose of the COVID-19 vaccination.
What this means is that unless they meet the valid exceptions under the COVID-19 Public Health Response (Vaccinations) Order 2021 (the vaccination order), some may face losing their jobs.
This raises wider questions regarding mandating vaccinations and employers’ ability to dismiss if an employee is not vaccinated.
Potential consequences of employing unvaccinated staff
The Vaccination Order contains a number of duties on persons conducting businesses or undertakings (“PCBUs”) including:
- notifying affected people of their duty to be vaccinating;
- preventing unvaccinated affected people from carrying out certain work;
- keeping a register of personal information up to date (including communicating with the Ministry of Health around this).
A breach of a duty under the Vaccination Order is considered an offence under the COVID-19 Public Health Response Act 2020, punishable by fine or imprisonment.
In addition to their duties under the Vaccination Order, employers must also consider their primary duty under the Health and Safety at Work Act 20115, to take all reasonably practicable steps to eliminate (or where that is not possible, to minimise) harm. This obligation extends to staff and members of the public who visit their workplace and should be at the forefront of employers’ minds.
Potential consequences for unvaccinated employees
From an employment law perspective, some employees may face losing their jobs if they are not vaccinated. However, it is unlikely employers can use the Vaccination Order as a free pass to require employees to receive a vaccine or dismiss those who do not comply.
Employers’ actions must still be fair and reasonable in all the circumstances, and they must keep an open mind to all relevant information when making a decision to dismiss. This includes:
- whether the particular employee is covered or exempt under the Vaccination Order;
- the level of risk posed to the individual employee, other employees and members of the public (who visit the workplace) of employing an unvaccinated worker in a particular role;
- the reasons for refusal of a vaccine and whether a dismissal could be seen as a form of discrimination (as defined under the Human Rights Act 1993);
- whether the employee could be redeployed (by agreement) to another role within the organisation; and/or
- whether the employee’s duties could be changed (by agreement) to remove or minimise the risk of being unvaccinated.
As above, the Vaccination Order is just one piece of information employers could rely on. They should be openly communicating with staff and running a fair consultation process to collect all relevant information before making any decisions.
Can employers require employees to be vaccinated?
While employers cannot require employees to be vaccinated, they can require certain roles to be undertaken by vaccinated people. Whether this requirement is reasonable depends on the nature of the work and the level of health and safety risk assessed by the employer.
Can employers require employees to disclose their vaccination status?
The short answer is no – but they may still ask. Employers can ask their employees (including prospective ones) to disclose their vaccination status if they have a good reason (related to the role) for doing so. Vaccination status is personal medical information. Therefore, in collecting, using and storing it, employers would need to ensure they are complying with the Privacy Act 2020.
For assistance with managing consultation processes relating to vaccination or ensuring that any vaccination questions or policies are legally compliant, get in touch with the Black Door Law team.