Mandating vaccines in the workplace when a law doesn’t exist

As the COVID-19 vaccination continues its rollout across the country there is increased talk on whether or not it should be made compulsory in more workplaces.

Under the New Zealand Bill of Rights Act 1990, vaccinations are considered a medical treatment and therefore require informed consent. However, if an employer believes there is a real and imminent risk to health and safety if an employee does not receive the vaccine, the employer may need to consider implementing alternative working measures.

“As it stands under current laws, in most circumstances it is unlikely to be considered lawful and reasonable for an employer to require employees to be vaccinated. While we may see circumstances change, employers should tread with caution and maintain open communication with their employees over their workplace vaccination rights, responsibilities and options,” said Employsure employment relations specialist Maddie McKenzie.

“Employers have an obligation to take reasonably practicable steps to ensure a safe and healthy workplace, and health advice indicates vaccinations are a critical component if we are to successfully come out of this pandemic. However, in the absence of a public health policy or legislation/regulation requiring vaccination, employers should consult with employees who are unable, or don’t want the COVID-19 vaccination, and discuss alternative measures that can help them do their job safely.

“This can include better enforcing existing infection control measures such as physical distancing, routine environmental cleaning, and the continued use of hand-sanitiser and personal protective equipment such as face coverings. This will, however, depend on the outcome of a risk assessment.”

While there is no legislation to mandate the jab for all businesses across New Zealand, some measures have been put in place for those in high-risk settings. Earlier in the year the Government made it mandatory for most border workers and workers at Managed Isolation and Quarantine (MIQ) facilities to be vaccinated.

While it is likely to be unreasonable to force an employee to get the lab in lower-risk settings, employers can ask the question to their employees on whether or not they want it. Employers can recommend or encourage staff to get vaccinated, provide them with relevant advice from the Ministry of Health and allow them to take time off during the workday if only weekday appointments are available.

Making vaccinations a condition of employment can carry high risk of a discrimination claim and will depend highly on the individual circumstances. It is important to consider whether the employee’s duties can be safely undertaken without a vaccination and if the condition is in line with Government guidelines for their industry. Employers could be exposed to a successful claim if they do not engage a prospective employee because they have not been vaccinated on medical or religious grounds.

Business owners should keep track of which employees have been vaccinated by using software like BrightHR, which can help employers monitor who is fully, partially, or not vaccinated against COVID-19 in the workplace. This can help them to limit face-to-face interaction with higher risk employees where appropriate and stop a potential spread of infection in the workplace.

Workers do not however, have to tell their employer if they have been vaccinated or even give a reason behind it. If this is the case, employers may need to assume the worker is unvaccinated and inform that worker of their assumption.

“The Government has indicated mandatory vaccinations for all will not happen in New Zealand. While an immunisation program encouraging vaccination may form part of a business’ methods of controlling risks, employers must also consider other control measures to reduce the likelihood of the spread of infectious diseases in the workplace,” continued Ms McKenzie.

“For employers who take charge and make vaccines mandatory for employees where a public health policy or legislation/regulation does not apply, by doing so it may lead to legal challenges in the future. Employers must be prepared for this and weigh up alternatives to mandatory vaccinations to meet their health and safety obligations in the workplace.”

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