Compulsory COVID vaccines for employees?

Thursday 28 January, 2021

As the COVID-19 pandemic worsens due to new South African, UK and Brazilian variants, and a vaccine becomes accessible, employers across the globe are asking whether they can require employees to be vaccinated against COVID-19. Some employers in the UK and USA are considering implementing ‘no jab, no work’ policies to protect their employees and customers. Workplace vaccination policies are not uncommon internationally: in many countries, health and aged care workers are required to have an annual flu vaccination, for example.

In New Zealand, few workplaces have vaccination policies, so employers are unsure whether they can require vaccinations. As New Zealanders have the right to refuse medical treatment under the New Zealand Bill of Rights Act 1990, and a vaccination is a medical treatment, no one can be forced to have the vaccination. However, employers have an obligation to provide a safe working environment. Does this mean employers have the right to terminate employees if they refuse the vaccine? Can employers refuse to hire new employees who are not vaccinated?

New employees

Generally, employers can impose reasonable conditions before employing new people, so long as in doing so they are not discriminating on any of the prohibited grounds under the Human Rights Act 1993. So, while there is nothing to prevent employers making COVID-19 vaccination a condition of employment for new employees in ordinary circumstances, this would not be lawful where the refusal to vaccinate is based on religion or disability.  An employer could not lawfully refuse to employ an applicant who had a medical condition or a genuine religious belief preventing them getting vaccinated. There are however exceptions whereby:

• the accommodations required for the religion must not unreasonably disrupt the employer’s activities,
• the environment that the duties are to be performed, or the nature of the duties, are such that they cannot be performed without a risk of harm (including risk of infection) to the employee or others, and that risk cannot be reduced through reasonable measures without unreasonable disruption.

Faced with a potential employee refusing vaccination on religious or medical grounds, the employer would need to look at whether an unvaccinated employee would create a genuine health and safety risk that the employer could not reasonably accommodate or alleviate. Employers who feel strongly about vaccination can incorporate it into new individual employment agreements, subject to availability of the vaccine, but would be best to seek legal advice if faced with resistance, especially if the resistance is based on health or religious grounds.

Existing employees

Employers are unlikely to be able to be justified in terminating existing employees based on a refusal to be vaccinated, as (in addition to the discrimination points already discussed) employers cannot lawfully impose new employment conditions without agreement from employees. The only exception would be workplaces where COVID-19 presents an immediate and significant health and safety risk to employees or customers and, in order to meet their health and safety obligations, a vaccinated workforce is reasonably necessary.

A high-risk workplace would include workplaces where staff have high probability of contact with COVID-19 cases and/or a significant risk of spreading infection to vulnerable individuals if an employee contracted COVID-19, such as border workers, frontline health care staff, and aircrew. However, even for high-risk workplaces, employers would first need to carefully evaluate the risk and consider all reasonable alternatives before they could terminate employment, including whether they could redeploy the employee to a lower-risk area of the workplace, or have the employee work from home. The risk could fluctuate greatly depending on the rate of community transmission at any given time (and therefore the likelihood of exposure).

Employers who want to make the COVID-19 vaccination compulsory for existing employees should seek professional advice first.

Conclusion

Although employers can largely impose vaccination as a requirement for new employees, there will be few workplaces sufficiently high risk to allow employers to reasonably require vaccination for existing employees in order to meet their health and safety obligations. Employers who feel strongly about vaccination should discuss the advantages of vaccination with their employees and look at ways that they can address vaccine scepticism or fear in the hopes of achieving a vaccinated workforce through employee agreement. Employment relationships are based on good faith and a heavy-handed approach to vaccination could be inconsistent with that concept.

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