The new COVID-19 Public Health Response (Vaccinations) Order 2021 has made it mandatory for certain “affected persons” to be vaccinated otherwise they can not continue working in their roles. For example, workers at Managed Isolation and Quarantine (MIQ) facilities, workers at our ports and airports who are at the greatest risk of exposure to COVID-19 are now required to be vaccinated.
All government employees covered by the order must have had their first dose by 26 August, while privately employed border workers must have had their first dose by 30 September. New workers covered by the Order (regardless of employer) will need to have their first dose before starting work.
A handful of workers in these facilities who refused vaccination have already lost their jobs, and some are going to the Employment Relations Authority claiming this is unlawful.
A recent case was brought by an employee of the New Zealand Customs Service who was dismissed after refusing to be vaccinated.
In finding that the dismissal was justified, the authority rejected the applicant’s argument that their stance on vaccination “does not impact any other person in the workplace”.
The authority held that every employee has an obligation under the Health and Safety at Work Act to take “reasonable care that his or her acts, or omissions do not adversely affect the health and safety of others” and that includes (in these circumstances) vaccination.
So, the real question is, if an employee chooses not to be vaccinated, can an employer choose to not hire them, or alternatively dismiss them if they are already employed?
As established in the recent Customs case, employers have obligations under the Health and Safety at Work Act to assess risks in the workplace and to take all reasonably practicable steps to ensure the health and safety of workers and people coming into the work environment. Therefore, based on such a risk assessment, it may be reasonable for an employer to determine that certain roles can only be performed by vaccinated workers.
It has been suggested that employers consider two factors in carrying out this assessment;
- The likelihood of a worker being exposed to Covid-19 while performing the role; and
- The potential consequences of that exposure on others (for example, community spread).
There will be some sectors where the risk of exposure and/or the consequences of contracting and spreading Covid-19, justify an employer directing that only vaccinated employees can perform certain roles. In such cases, the employer would need to consider redeployment and any other options for non-vaccinated staff, but if these alternatives could not reasonably be accommodated, dismissal may well be justified.
If you have questions about any issues arising out of Covid 19 contact Sue or Renee.