Can your boss call the shots on Covid-19 vaccination?

Thursday, 4 February 2021

“No jab, no job” policies are likely to become an issue in New Zealand as Covid-19 vaccines become available, according to an employment lawyer.

Retirement village and aged care provider Arvida Group this week said all new employees would need to consent to vaccination against Covid-19, as well as the flu.

Arvida operates 32 facilities nationwide and employs about 2500 mainly frontline workers.

The new requirement was being introduced to protect its 5000 residents, who are considered some of the country’s most vulnerable, chief operating officer Jeremy Nicoll said.

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Retirement village and aged care provider Arvida Group says all new employees will need to consent to vaccination against Covid-19. (File photo)

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The announcement came as Medsafe granted the Pfizer/BioNTech vaccine provisional approval for use in New Zealand, allowing the two-dose inoculation to be administered to anyone 16 or over.

Health workers, border workers, their families, and those most at risk of death from Covid-19 will be first in line.

Susan Hornsby-Geluk, managing partner at Dundas Street Employment Lawyers, said stories of employers introducing “no jab, no work” policies were already surfacing in the UK, where more than 10 million people have received at least one dose of the vaccine.

Similar policies were likely to become an issue in New Zealand as vaccines became available, she said.

Health workers, border workers, their families, and those most at risk of death from Covid-19 will be first in line for the vaccine. (File photo)

“Legally, the starting point is that vaccination is a medical treatment, and under the New Zealand Bill of Rights Act, this requires informed consent.

“In other words, it could not become mandatory without a law change, which is highly unlikely.”

However, employers could make proof of vaccination a term of employment for new staff, except when doing so would breach discrimination rules under the Human Rights Act.

Exceptions would include where an employee’s religious beliefs or a medical condition prevented them from being vaccinated.

Employment lawyer Susan Hornsby Geluk says imposing new conditions of employment on existing staff would only be justified on serious health and safety grounds.

The question then became whether their non-vaccination genuinely created a health and safety risk that the employer couldn’t reasonably accommodate, she said.

“Given that New Zealand workplaces have continued to operate more or less safely up until now without the added protection of vaccines, it may be difficult for employers to take the position that people who cannot, or will not, be vaccinated have suddenly become a significant risk.”

In the case of existing employees, imposing new and different conditions of employment is not generally lawful and would only be justified on serious health and safety grounds, Hornsby-Geluk said.

“In other words, an employer could encourage existing employees to be vaccinated, and may be entitled to request proof of this in high risk sectors, but could not make it mandatory.”

Employers would be unlikely to be able to dismiss an existing employee who chose not to be vaccinated unless the employee worked in a high-risk area and there was a “real and imminent” health and safety risk.

“The employer would also need to explore all reasonable alternatives to dismissal, such as allowing the employee to work from home or in another area, or on alternative duties, for a period of time.”

Other businesses are also exploring their options for workforce vaccination.

Air New Zealand chief executive Greg Foran said the airline was having conversations with the Ministry of Health and staff about receiving vaccinations.

'We'll come up with the right answer for all our stakeholders. Over the next few weeks we'll pull that together.'

Council of Trade Unions president Richard Wagstaff said the best approach was to work with staff, rather than compel those who refused vaccination.

Compulsory orders were likely to “get people’s backs up” and create resistance, he said.

New Zealand has ordered enough of the two-dose Pfizer vaccine to cover 750,000 people, with an aim of covering the most exposed to Covid-19 and those most at risk of dying from it.

Several other pre-purchasing agreements have been established for vaccines for the wider population