Employment and vaccination: has anything changed?

Thursday 29 July, 2021

As the Delta variant spreads around the world, countries with access to COVID-19 vaccines are encouraging residents to get vaccinated as quickly as possible, in an effort to return to life as normal. However, some have significant numbers of vaccine hesitant people, which is impeding efforts to achieve full vaccination. Some country or state governments are imposing, or allowing restrictions to be imposed on, unvaccinated people to try and overcome this hesitancy.

The Fijian Government has recently passed workplace health and safety regulations which require all employees and employers to be vaccinated against COVID-19 in order to work. Employers and employees have until 1 August 2021 to get their first dose of the AstraZeneca vaccine before and must have their second dose before 1 November 2021. 

In France, the government has introduced a COVID pass, requiring unvaccinated people to show proof of a negative COVID test before they can go to movie theatres, museums, sporting or other cultural events. This is likely to be extended to restaurants, malls, trains, and planes later in the year. France has also made it compulsory for healthcare or retirement workers to be vaccinated from September.

In the USA, business can, and have, fired workers who have refused to be vaccinated, including 150 workers dismissed from one Texas hospital alone. Around 400 universities have made it compulsory for students to be vaccinated if they want to return to campus, including highly prestigious colleges such as Harvard, Yale, and Stanford. A Federal Court recently refused to overturn Indiana University’s requirement for student vaccination.

What about New Zealand?

Thus far, vaccine hesitancy has been less visible in New Zealand, most likely due to the slower rollout of its vaccination campaign, which means that the number of people wanting to get vaccinated still significantly outweighs the number of vaccinations available. However, COVID vaccinations have been compulsory for all Managed Isolation and Quarantine (MIQ) facilities workers since 30 April 2021 and the government recently extended the requirement to workers at ports and airports who are at risk of exposure. Around 135 border workers had to be redeployed because they were not fully vaccinated by 30 April and 9 staff on fixed contracts at the maritime border were dismissed after declining to be vaccinated.

Can employers require employees to be vaccinated?

Generally, New Zealand employers cannot impose new employment conditions without agreement from employees, so they are unlikely to be able to make existing employees redundant if they refuse to be vaccinated unless COVID-19 presents an immediate and significant health and safety risk to employees or customers. Employers would also need to consider all reasonable alternatives before redundancy, including temporary or permanent redeployment or remote working.

Generally, employers can require COVID-19 vaccination as a condition of employment for new employees but cannot discriminate based on the grounds of religion or disability, for example, if a new employee had a medical condition or a genuine religious belief preventing them getting vaccinated. 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.

Could the situation change?

Although employers can impose vaccination as a requirement for new employees, at this stage there will be few workplaces sufficiently high risk to allow compulsory vaccination for existing employees. However, the government has twice extended compulsory vaccination for border workers and allowed workers to be dismissed for refusing the vaccine, despite originally saying that anyone refusing the vaccine would be redeployed. The New Zealand Defence Force has recently cancelled apprenticeships for service personnel refusing to be vaccinated. Once New Zealand’s vaccination campaign opens to all ages, is it possible that the government could change the law to allow employers to require existing employees to get vaccinated? At this stage, the government has given no indications that it intends to do so, but if New Zealand is struggling to achieve high enough vaccination levels to allow reopening, the government may choose to follow the example set by Fiji and the USA.

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