Legal advice for employers on COVID vaccinations

September 7, 2021 8:04 am

Lawyer Amanda Douglas, a partner at Wynn Williams, has some important advice for businesses on vaccinations and the rights of employers and staff. 

Q: Can an employer set the criteria around whether staff should be vaccinated, and could a company policy state that all staff need to be vaccinated? 

We recommend developing a Covid-19 vaccination policy if an employer would like to set parameters around Covid-19 vaccinations. This is the best way to provide clear guidance to staff on employer expectations, particularly when a unique and untested issue is involved. 

When implementing any policy, an employer is required to consult with staff about the policy and consider any additional information or evidence in good faith. As a matter of effective consultation, it would be useful to understand the basis for any vaccine hesitancy among currently unvaccinated staff. An employer could, as part of the consultation process, aim to encourage vaccination and explain in clear and simple terms the benefits to staff of protecting themselves and their community. 

An employer cannot go as far as to force an individual to be vaccinated. Covid-19 vaccinations are medical treatments and everyone has the right to refuse medical treatment under the New Zealand Bill of Rights Act 1990. The exception is under the Covid-19 Public Health Response (Vaccinations) Order 2021, where “affected persons” must not carry out certain work unless they are vaccinated. “Affected persons” are those who fit within certain groups of workers at managed quarantine facilities; managed isolation facilities; affected airports; affected ports; aircraft; and workers who handle items from those areas. 

If an employer wishes to require its staff to be vaccinated for health and safety reasons, they may be able to explore this as a part of its obligations under the Health and Safety at Work Act 2015, including ensuring the health and safety of its workers, and other persons in the workplace. 

The employer would need to show that it would be lawful and reasonable to direct an employee to be vaccinated, and that the failure of an affected employee to follow a lawful and reasonable instruction to be vaccinated would put the health and safety of the employer’s workers, and other persons in the workplace, at risk. If an employer would like to explore this option, we would be happy to help with preparing legal advice specific to their workplace. 

Another option available to employers is that they require a specific role to be performed by a vaccinated person. The employer would need to carry out a health and safety risk assessment to support their decision, prior to implementation. This assessment should be done in collaboration with workers, unions, and other relevant representatives. 

There will undoubtedly be litigation flowing from the types of decisions involved in this issue, and it is not yet clear where the courts will stand, so we recommend caution if employers are considering making these assessments. We can assist with any specific advice as required. 

Q: Can an employer ask staff about their vaccination status? 

Yes, an employer can ask employees whether they are vaccinated, but with the proviso that they have the right not to disclose this information if they choose not to. 

Employees do not have to disclose to their employer if they have been vaccinated, or why they are not vaccinated. If employees choose not to advise their employer of their vaccination status, the employer may treat them as if they have not been vaccinated. If the employer wanted to do that, they should inform the employee that they will make that assumption. 

An employer must also protect personal information about their employees’ vaccination status and cannot share it without their consent. 

Q: Can an employer be prosecuted for discrimination if they do not employ people who choose not to be vaccinated? 

Unlawful discrimination in the field of employment includes discrimination on the grounds of age, race or colour, ethnicity or national origin, sex (including pregnancy or childbirth), sexual orientation, disability, religious or ethical belief, marital or family status, employment status, political opinion, being affected by family violence, and involvement in union activities. These grounds do not include vaccination status. 

As outlined above, if an employer wished to direct employees to be vaccinated, or require a specific role to be performed by a vaccinated person, such action would need to be guided by the applicable legal requirements. However, this would need to be carefully justified. 

An employer could choose to require that new staff must show proof of vaccination as part of the pre-requisites of becoming an employee. This would need to be set out in the relevant employment agreement and be agreed to by the prospective employee. 

Q: Can an employer dismiss an unvaccinated employee if they choose not to be vaccinated? 

Again, this is an untested area so we would recommend seeking legal advice, if this arises. 

If consultation has been conducted, and a policy has been developed with staff where the consequences of choosing not to be vaccinated are made clear, it is possible that an employer may determine that the refusal of the employee to be vaccinated, in breach of lawful and reasonable instruction, may warrant the employee’s dismissal. Considering alternative roles (that might not require vaccination) may also be required. 

In Australia, the dismissal of an employee who did not comply with the employer’s lawful and reasonable direction to be vaccinated against influenza was found to be justified, so parallels may be drawn here. 

Q: Can employees who are vaccinated refuse to work alongside those who are not, and does an employer have a duty to provide separate facilities to address this issue? 

With the parameters continuing to change rapidly around Covid-19 precautions and guidelines, employers should consider developing, if they have not already done so, a Covid- 19 risk mitigation strategy. This may be in the form of the policy described above. Evolving public health information and context would need to be taken into account, to ensure that the employer meets its health and safety obligations by protecting the health and safety of its workers. 

Any specific measures such as the provision of separate facilities would need to be considered in light of this information and balanced against any costs involved in doing so. The nature of the work will be relevant here. 

Q: Can employers reduce staff salaries, in light of lockdown, if they can’t work from home? Does it make a difference if the employee has only been working for 2 weeks before lockdown? 

Normal employment law applies in this situation. The pandemic does not give employers license to unilaterally reduce wages/salary without consultation. 

Employers may be able to do so if an employment agreement allows for suspended wages in the circumstances of a pandemic, but they would still need to consult staff. 

It is important to follow a proper process. We now have case law, from previous lockdowns, which confirm that a process is needed. 

These obligations are not different if the employee has only worked two weeks. The employee is still treated as an employee under employment law and, in general, has the same rights and obligations as other employees. 

  • If you are a member of RTANZ and have an employment, health and safety related or other legal question, please submit it to Amanda Douglas at Wynn Williams: [email protected]  with the subject line RTANZ Ask a Lawyer. Feel free to also make use of Wynn Williams’ legal helpline, in which the first 15 minutes are free for RTANZ members, by calling Amanda on (03) 379-7622.