Covid 19 Delta outbreak: No jab, no job? Experts question legality of potential workplace policy

Employment law experts are warning bosses against rushing to introduce mandatory Covid-19 vaccination for staff, which may conflict with individual and privacy rights.

No jab, no job policies introduced around the world have already created controversy.

Across the Tasman, the Victorian state government announced those in the construction industry are now required to show evidence they have had a first vaccine dose after public health officials become concerned about transmission in the sector.

It sparked days of protests and unrest in Melbourne this week by an assortment of construction workers, anti-vaxxers, lockdown opponents, so-called “freedom defenders” and conspiracy theorists.

In the United States, more companies are also requiring employees to be vaccinated, while President Joe Biden introduced an “action plan” this month that would affect tens of millions of people.

The plan involves private companies with more than 100 workers ensuring staff are vaccinated or tested weekly, which has led to state governors threatening lawsuits and Biden being labelled a dictator by Republicans.

Back in New Zealand, a frontline border protection officer was fired after refusing to get vaccinated. Customs NZ was then cleared by Employment Relations Authority this month of any wrongdoing, which ruled it was justified in dismissing the unvaccinated worker in April.

The decision was described as a landmark for New Zealand, while employment law expert Max Whitehead said Kiwi employers and employees might have to reassess their position on Covid-19 vaccinations.

But Jo Douglas, a partner at Auckland employment law firm Douglas Erickson, told the Herald the majority of employers will not be able to require their staff to be vaccinated.

“Individuals have a right to make their own decisions about medical treatment – which includes vaccinations – and also have privacy rights in regards to sharing their vaccination status and reasons for declining to be vaccinated,” she said.

“Where staff are encouraged to get vaccinated, their personal views should be respected.”

Dr Alan Toy, a senior lecturer of commercial law at the University of Auckland, also said workers have the right to refuse to be vaccinated but added the nature of their job may have changed, particularly with the Delta outbreak.

Douglas said if an employer considers it beneficial for employees to be vaccinated, they can take several measures to encourage them to be jabbed.

“These might include incentives, as well as addressing practical barriers to getting vaccinated.”

Such examples, Douglas said, could include allowing paid time off and transport to vaccination centres.

However, she said, for some employers, where staff are working in high-risk roles, employers may be able to make it a condition of employment that certain roles must be performed by a vaccinated person.

“The key point is that the employers must carry out a thorough health and safety assessment to determine which roles are high-risk, taking into account the likely exposure, as a part of their role, to Covid-19 and the likely risk to those around them, such as vulnerable or high-risk customers,” Douglas said.

In such an assessment, staff should also be consulted, she added.

Toy agreed a health and safety assessment or a government vaccination order was needed before employers could require staff to be jabbed.

“The question of whether [employers] can legally mandate it depends on whether or not the vaccinations order applies. And if it doesn’t, then they would need to have this health and safety assessment to decide if it is a role that carries a significant risk of danger from Covid,” he said.

If vaccination was required, another issue was how long employees are given to make their decision on whether to be vaccinated, Toy said.

“You shouldn’t really be requiring them to make the decision on the spot, you should give them a reasonable time to do that.”

If an employer had carried out a risk assessment and determined a role required a vaccinated person, new staff could be a less contentious issue.

“The employee can determine from the outset if they want to accept the terms and conditions offered,” Douglas said. “Terms of employment requiring vaccination can be written into an employment agreement in this situation.”

But it should not be a “templated” approach, she added, and would only apply to specific high-risk roles.

For existing employees, an employer cannot change their terms of employment to include a Covid-19 vaccination provision without agreement – unless mandated by a government order.

But, Toy added, it was important to also consider the employer’s position.

“Employers are in a really difficult position, they have to have a safe workplace and have staff feel confident they can work there.”

Currently, the only roles mandated by government order requiring vaccination are those where the nature of the role is to protect the border and to prevent community transmission.

These include managed isolation and quarantine (MIQ) facilities and managed isolation facilities; affected seaports; the airside area and some other higher-risk work at affected airports; and accommodation services where specified aircrew members are self-isolating.

However, the Government is currently consulting over a proposal to extend the current order to cover health workers.

Douglas explained if an employer dismissed someone for refusing to be vaccinated, and had not carried out a risk assessment establishing it as a necessary safety measure, then the decision might be unjustified.

“If considering termination, all alternatives to dismissal must be explored including redeployment and whether there are other ways to manage the risk of harm.”

Toy also said bosses would need to consider redundancy and redeployment for staff reluctant to be jabbed in vaccinated roles.

They also said employers’ policies and procedures on vaccination should be reviewed as the pandemic situation evolves.

“The nature of the risk may change over time, meaning that the measures the employer needs to take may also need to be updated,” Douglas said.

Both Douglas and Toy said an employer couldn’t simply start probing staff or job applicants to find out if they’d been vaccinated without a health and safety assessment or government order requiring the role be performed by a vaccinated worker.

“I don’t think you would be able to force them to tell you,” Toy told the Herald.

Douglas explained employers may be able to ask if it was necessary to manage the safety of the individual, and others around them who may be vulnerable.

“In all other cases, it is not appropriate to ask staff if they have been vaccinated,” she said.

“This is private medical information that the employee is entitled to keep private.”

If staff have disclosed the information and consented then a vaccination record can be kept, Douglas said.

For businesses such as cafes and restaurants wanting to prevent customers from entering without proof of vaccination, Douglas said: “We do not think a cafe or restaurant could justifiably mandate this.

“This would only be appropriate in high-risk situations, as assessed as part of a thorough health and safety review.

“The Government would need to set clear direction through a health order for this measure to be undertaken. Vaccine passports have proven to be controversial in some countries around the world where they have been considered.”

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