By: Anthony Drake
There can be no doubt that all employers have a duty to provide conditions of employment that allow people to be, and stay, healthy.  This is a developing area which is complex and involves health and safety, employment, human rights and ethical considerations. 

The Government has made vaccination mandatory for some workers.  Under the COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccinations Order), “affected persons” must not carry out certain work unless they are vaccinated.  Those 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.  Although the Government has previously signalled that it is considering broadening these groups to include healthcare workers, this has not yet occurred and there is no legislative requirement that healthcare workers be vaccinated.

Health and Safety

Is mandatory vaccination within the meaning of “reasonably practicable” under the Health and Safety At Work Act 2015? 

There is no doubt that COVID-19 poses significant risk to human health.  In New Zealand, the risk of being infected right now is arguably no longer low, due to the recent Delta variant outbreak prompting the August 2021 lockdown.  We have previously said that there would need to be much wider and sustained community transmission to justify mandatory workplace vaccination in New Zealand.  The Government is strongly encouraging all New Zealanders to get vaccinated, and it may be that we see wider mandatory vaccination beyond the scope of the present Vaccinations Order.

It is also relevant that there are other ways to protect against spreading COVID-19 in the workplace, such as more widespread mask wearing, social distancing, and working remotely.  Arguably, these minimisation strategies are less preferable to elimination strategies such as mandatory vaccination, especially for industries such as healthcare, travel, and hospitality where the risk of transmission is higher.

The Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 also require PCBUs to identify hazards that could give rise to reasonably foreseeable risks to health and safety (reg 5), and when it is not reasonably practicable for a PCBU to eliminate risks to health and safety, to implement control measures to minimise risks to health and safety (reg 6).

Case law guidance

New Zealand case law has so far only very superficially touched on the topic of mandatory workplace vaccinations.  Two District Court decisions in 2008 and 2016 both took it for granted that an employer could not require either a blood test or vaccination for hepatitis B (Department of Labour v Idea Services Ltd DC Hastings CRN08020500068, 4 November 2008; Worksafe New Zealand v Rentokil Initial Ltd [2016] NZDC 21294). In both cases, the risk of infection was primarily to the employee, the previous health and safety legislation applied, and the decision did not delve into the jurisprudence in any detail.

More recently and relevantly, a temporary border worker at a port was dismissed by her employer when the New Zealand Government issued a COVID-19 Public Health Response Vaccination Order 2021 that from midnight 30 April 2021 required certain workers to be vaccinated in order to continue working at border facilities, and that worker chose not to be vaccinated.  The Employment Relations Authority has made a preliminary determination declining the worker’s application to remove the claim to the Employment Court (GF v OO [2021] NZERA 251, 14 June 2021) but the substantive claim has not yet been heard.

A recent decision of the Fair Work Commission in Australia in Barber v Goodstart Early Learning [2021] FWC 2156 (20 April 2021) provides useful guidance for New Zealand employers about mandatory vaccination policies and whether, and in what circumstances, mandatory vaccination policies could amount to “lawful and reasonable instructions”.

The Fair Work Commission confined the decision to the particular industry in that case (the childcare industry). It held that the dismissal of an employee who did not comply with the employer’s lawful and reasonable direction to be vaccinated against influenza was justified.  The Fair Work Commission considered that the following factors were relevant in determining that the policy and instruction were lawful and reasonable:
  1. The employer had statutory duties to ensure the health and safety of its workers, and children under its care.  Failure to comply with these duties could attract a criminal penalty; and
 
  1. Vaccination is a superior control measure, in conjunction with other control measures, when considering the hierarchy of controls and their application in a childcare environment. Government advice accepted that it was not practicable to socially distance in a childcare environment, nor was PPE appropriate in childcare in circumstances where every time an employee touched a child they would be required to dispose of their PPE and replace it before touching another child.

Mandatory vaccination policy

Any employer wanting to require its staff to be vaccinated would need to rely on two key grounds: first, that it is lawful and reasonable to direct an employee to be vaccinated, and second, 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 to whom the employer owes health and safety obligations (i.e. clients or customers), at risk.

The critical element to consider is the purpose of the policy and whether requiring vaccination is reasonable in the circumstances.  This is a fact-specific determination and requires consideration of the nature of the work or industry and relevant regulatory obligations, among other factors.  The employer will need to analyse the workplace environment, how the enterprise is structured, alternative avenues for risk management and what control measures exist other than to mandate vaccination (including standard precautions such as the use of personal protective equipment and appropriate cleaning and disinfection).
 
Ultimately, if an employee maintains the position that he or she does not wish to be vaccinated, then the employer cannot force the employee to be vaccinated.  However, the employer may determine that the refusal of the employee to be vaccinated (in breach of the lawful and reasonable instruction) may warrant the employee’s dismissal.

Human rights

Should employers (or the State) use measures to compel vaccination compliance?  In considering this ethical issue, care is needed in appealing to examples of situations where we already allow coercive measures to serve the public good.  A key principle in New Zealand is self-determination.  The New Zealand Bill of Rights Act 1990 (NZBORA) enshrines the right to refuse medical treatment (section 11), but this right may be subject to justifiable limitations.  Ultimately, employees are free to leave their employment if they don’t like the conditions their employer is imposing on them.

Conclusion

With the current Delta variant issues facing New Zealand, we consider more employers will have a justifiable basis for instituting a mandatory vaccination policy.  It will be important for employers seeking to implement such a policy to run a thorough consultation process with its staff on the policy. The consultation process will also be a good opportunity to engage with vaccine hesitant staff and to encourage them to get vaccinated.

 
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