Wellington, June 8, 2021
Employment Law continues to apply if work cannot be done by unvaccinated employees.
Particular Laws apply for employees and employers.
This information is for employment relationships where an employee does work that can only be done by a vaccinated worker, either For health and safety reasons, justified by a Covid-19 exposure risk assessment or because their work is covered by the Covid-19 Public Health Response (Vaccinations) Order 2021.
If employees are doing work that can only be done by a vaccinated worker, but are not vaccinated, employers must address any practical barriers to accessing vaccination (e.g. if travel or time off work is needed).
Employers should do this before considering any of the following options.
Employers should take care to be fair and reasonable in their response, and work through processes with employees in good faith before deciding on any outcome.
Changing work arrangements or duties
In consultation with employees and their unions, employers should consider how much of an employee’s work poses a high risk of exposure to Covid-19. Employees and employers can both agree to change work arrangements (for instance, location or hours of work) or duties (job content), which could mean a role no longer poses a high risk.
Employers and employees (with their unions) should try to reach a mutually agreed outcome, such as agreeing to change work arrangements or duties.
Employers should also consider whether the tasks that require vaccination can be deferred. For example, if an employee has a particular reason for not being vaccinated (for example, pregnancy, certain medical conditions, or existing medication regimes) then, this might mean certain alternative arrangements can be agreed for the short term, with vaccination planned for a later date.
Leave entitlements and impositions
Employers and employees can together agree on a form of paid leave, either special paid leave or annual leave. Special paid leave should be considered, especially in the short term, when employers and employees are discussing whether an employee will be vaccinated and what will happen if the employee is not vaccinated.
If an employer and employee cannot agree, the employer may direct the employee to take annual leave (if the employee has leave entitlements available) with at least 14 days’ notice.
An employer cannot make their employee take unpaid leave without their consent. If an employer has directed their employee to take unpaid leave, this could be seen as the employer unlawfully suspending the employee.
Employers may also consider restructuring, including redundancies, if most (or all) of a role carries an established high risk of exposure to and transmission of Covid-19. This could mean that introduction of Covid-19 vaccines has changed the role to the extent that it can only be done by vaccinated employees. Employers may need fewer unvaccinated employees as a consequence. If so, employers should take care to act in good faith. Employers should seek legal advice about this.
Redundancy must be the last option, after all other options have been exhausted.
Changes in Workplace
In limited circumstances, an employee being unvaccinated could be grounds for medical incapacity. These circumstances are likely to only arise where roles already require certain other vaccinations. In these situations, employers should follow any contractual process for medical incapacity, which could include notice periods and compensation.
Ultimately an employer and employee may agree to a negotiated end of employment, but individual dismissals are unlikely to be justifiable in almost all cases, based on current circumstances.
Parties can also agree on any other option that is lawful, as long as they follow the terms of an individual or collective employment agreement that applies.
Amending existing employment agreements
Employers and employees (or their unions, for a collective agreement) can negotiate variations to existing conditions. This could include adding Covid-19 vaccination as a term of employment, if it is reasonable for the role (for example, required for health and safety reasons).
Vaccination for new employees
Employers can require vaccination as a term of new employment agreements, but this must be reasonable for the role (for example, required for health and safety reasons). This must not be unlawful discrimination under the Human Rights Act.
The New Zealand Bill of Rights Act may also apply. Under this Act, everyone has the right to refuse medical treatment, including vaccination, though this right can be subject to justified limits. Businesses must engage with workers, unions and other representatives when creating or varying policies and use established processes where possible. Changes to workplaces policies must not result in inconsistency with employment agreements.
Right to stop unsafe work
Workers have the right to stop work or refuse to carry out work if they believe that doing the work would expose them, or anyone else, to a serious risk to health or safety from an immediate or upcoming hazard.
In general, unless vaccination is needed for health and safety reasons, work is unlikely to be unsafe solely because it is done around unvaccinated workers.
Flexible work arrangements
Employees have the right to request a change to their work arrangements, which includes their place of work.
Before any vaccine is approved for use in New Zealand, it must meet international standards and local requirements for quality, safety and efficacy. We should all play our part, by relying on trustworthy information about vaccines.
Sharing vaccine misinformation could, in some circumstances and in some workplaces, potentially amount to misconduct in the workplace.
Such instances are likely to be rare. Employers should seek legal advice before taking any action for such conduct.
Source: Employment New Zealand. The above story has been sponsored by