Covid-19 vaccination and employment

The past few months have been an uncertain times for New Zealanders, as community cases of COVID-19 have been detected in Auckland, and short lockdowns have been reintroduced.

Fortunately, there is light at the end of the tunnel as the Covid vaccination programme has begun. Many employers are beginning to think about what the vaccinations might mean from an employment perspective.

The first point to note is that vaccination is a form of medical treatment, and the recipient of the vaccine needs to give informed consent to the procedure under the New Zealand Bill of Rights Act. This means that employers can’t make vaccinations mandatory for their employees, unless there is a change in the law. 

Complicating matters, employers also need to do everything that is reasonably practicable to provide a safe and healthy working environment for their employees. In certain sectors, non-vaccination creates a genuine and significant health and safety risk that you may not be able to reasonably manage.

Problems arise if an employee refuses to get vaccinated or has not yet been vaccinated. One way around this impasse between their rights and your duties under health and safety legislation is to make changes to the employee’s duties for health and safety reasons. In consultation with your employee, you would need to investigate other options for them to carry out their duties, for example by asking them to work from home; to work in another area of the practice; or to find them alternative duties for a defined period.

For new employees in health practices, you may be able to make vaccination or proof of vaccination a pre-requisite of being employed, 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.

This is not an option for current employees, since being vaccinated is presumably not a condition of their employment. For these employees, you would need to negotiate with them about the vaccination in good faith.

Employers would need to show why the employee needs to be vaccinated, rather than simply requiring them to use personal protection equipment (PPE) or take alternative measures. After all, these measures have been very successful in preventing the spread of the virus over the past 12 months, so it would be arguable that a vaccination was not necessary.

The requirement to be vaccinated may be seen as a ’fair and reasonable’ direction for front line staff and if an employee declines, you would need to look a redeployment or other management options.

In most health settings, there will be policies that require employees to be vaccinated for Hepatitis B, MMR and Flu, so it may be reasonable to expect that the policy could be extended to include the Covid-19 after consultation with staff.