This post is about whether people can be treated adversely in their employment for their refusal to be vaccinated. This post does not address the Vaccination Order: which is heavily published on my blog.
These are unprecedented times, and the law is yet to be defined and determined on this matter: however, it is my view that our existing statutory framework already provides us with the answer on this topic.
Vaccination Discussions
With all discussions, discussions around a persons choice to receive the COVID-19 vaccination are to be held in good faith and in consideration of the principles contained within the Privacy Act 2020. This means that an employer may ask an employee if they have been vaccinated, but an employee is not obligated to answer that question. However, if the employee does not answer the question, the employer is entitled to assume that the employee has not been vaccinated.
If the employee is not vaccinated, and does not currently intend on getting vaccinated, the employee is not required to provide an explanation or reason why. However, if the employee does choose to disclose information, this must be held in confidence and protected in accordance with the privacy principles.
New Zealand Bill of Rights Act 1990
In accordance with section 11 of the New Zealand Bill of Rights Act 1990, every person has the right to refuse to undergo medical treatment. Vaccinations are included under the umbrella of "medical treatment", and therefore each person is entitled to refuse to be vaccinated.
As an employee, you are required to follow all lawful and reasonable instructions from your employer. However, as discussed above, it is my view that it is not a lawful instruction to require someone to be vaccinated.
This means that an employer cannot terminate an employee's employment on the sole basis that they have refused to be vaccinated.
Health and Safety at Work Act 2015
The discussion doesn't end there. You will have heard the saying: "Freedom of speech doesn't mean freedom from consequences." In a similar light, the right to refuse medical treatment does not mean the right not to be treated adversely in your employment.
This is because under the Health and Safety at Work Act 2015, the employer is required to eliminate risks to health and safety, as far as is reasonably practicable. If those risks cannot be eliminated, the employer must take steps to minimise that risk as far as is reasonably practicable.
This means, if an employer has completed a health and safety risk assessment, they may be able to require that a specific role be performed by a vaccinated person. This means that the employer would be entitled to request information about a persons vaccination status as part of the pre-employment questionnaire.
However, if an employer wishes to ensure that a specific role be performed by a vaccinated person during employment, the employer will be required to undergo an extensive consultation process. The process would essentially be a restructure process: after all, the employer is changing the nature of the role.
The consultation period would include the health and safety risk assessment, and should be conducted in conjunction with the employees, their representatives, and their relevant unions. The main question that will be asked when creating the risk assessment is: Does the vaccine reduce the risks to health and safety, as far as is reasonably practicable?
There is very little case law in the health and safety jurisdiction: however, the two applicable cases suggest that an employer is only required to offer the vaccine to its employees, to meet its Health and Safety obligations.
In Idea Services Limited, the company was accused of failing to take all practicable steps to ensure the safety of employees while at work. However, the charge was dismissed, as it was held that it was not a practical step for an employer to demand a blood test to prove immunity from Hepatitis B.
The Court further found that the employer could not require vaccination: so long as the employer notifies its employees of the option of medical screening, they had complied with the relevant statutory obligations of the health and safety legislation at that time.
Read the case here:
Similarly, in Rentokil Initial Limited, the company plead guilty for failing to take all reasonably practicable steps to ensure the safety of its employee while at work, in that it failed to take all practicable steps to ensure that he was not exposed to the risk of contracting Hepatitis B.
In this case, it was held that the practicable steps available to the company which should have been taken were:
To have ensured relevant employees were tested to determine whether they had immunity to Hepatitis B, and, if necessary, to have offered employees Hepatitis B vaccination.
To have established an effective system for ensuring the Hepatitis B Policy was implemented throughout New Zealand.
In considering the effect of Idea Services Limited, the Court stated:
The present case is about a failure to offer screening and/or vaccination. If the defendant had offered screening and vaccination, and [suppressed] had denied it, then Idea Services would have applied to the effect that the defendant could not be expected to do more, and in particular, could not insist on screening or vaccination.
Read the case here:
Employment Relations Act 2000
The Employment Relations Authority does not have the jurisdiction to determine matters under the Health and Safety at Work Act 2015, which means the central question will be whether the employer acted fairly and reasonably. While the Health and Safety at Work Act 2015 will inform what is "fair and reasonable", it is not the only consideration of the Employment Relations Authority.
This question is currently before the Employment Relations Authority: however, I provide an overview of my submissions below.
There is no directly applicable case law in the employment jurisdiction which relates to vaccinations as a means of addressing health and safety obligations. However, the competing interests of 'health and safety' and 'personal autonomy' has been canvassed in relation to random drug testing in the workplace.
The dicta in New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc v Air New Zealand Limited is relevant to an extent. However, it must be highlighted a drug test was not seen to be "medical treatment", and therefore the New Zealand Bill of Rights Act 1990 was not factored into this balance.
In this case, it was held that in order to balance the interests of employees and the interests of safety, a testing regime needs to have a sufficiently proximate connection between the impairment of employees by means of the consumption of alcohol or drugs, and operational safety. This necessary connection is capable of existing:
On reasonable cause to suspect that an employee’s behaviour is an actual or potential cause or source of harm to others as a result of being affected by alcohol or drugs or both;
On application for employment in, or internal transfer to, safety sensitive positions;
In post-accident/incident or near miss situations; and
In random testing in safety sensitive areas only.
However, as is the case with all drug testing cases, it is important to highlight that the primary focus is on the harm that an intoxicated employee may cause to others (ie, the “operational safety”).
Read the case here:
Risk of harm to "operational safety"
This means that one point of difference between drug testing cases, and the current issue of vaccination, is whether the employee's refusal to be vaccinated has the potential to cause harm to others in the workplace.
In considering this difference, it is my view that vaccination may only be considered where the employee's status as an unvaccinated person could impact the health and safety of any other person in the workplace. In consideration of the fact that the vaccination would be available for every other employee, this could only involve situations where the employee's have regular contact with vulnerable persons who may not be able to receive the vaccination. However, this distinction was made for the purposes of my submissions, and I was not required to canvass this further.
The requirement to vaccinate could be further contrasted with the general requirements to wear PPE to mitigate and minimise risks to health and safety. While the requirement to wear PPE is predominately to protect the individual (and not others), the requirement to wear PPE does not (usually) impact on a person's rights under the New Zealand Bill of Rights Act 1990.
Safety sensitive area
The second consideration in drug testing cases, is whether the employer's workplace is a safety sensitive area. As discussed previously, in considering the context of COVID-19, this would involve workplaces that involve working with inherently vulnerable persons, who either may not be able to receive the vaccine, or who might nonetheless carry a greater risk should they be infected.
In addition, in considering what constitutes as 'safety sensitive' ought to considered with a comparative approach. This means that the risks of contracting COVID-19 at the workplace must be significantly greater than any other workplace in New Zealand.
Overall assessment of risk
There will also need to be an assessment of risk: which will include an assessment about whether it is possible to reduce the risk without the requirement to vaccinate. The employee concerned may want to have discussions about alternative methods: including wearing a mask, wearing gloves, using hand sanitiser, exercising social distance, and other safe social and hygienic practices.
Redeployment and Redundancy
If an employer concludes that the role must be conducted by a vaccinated person, it must then consider whether it is possible to redeploy the employee to a less safety sensitive role.
It is my view that if termination of employment is the only viable option, that the employee concerned would be made redundant and the redundancy provision in the individual employment agreement would apply. This is a restructure: it involves a change to the requirements of the role.
This is an issue which is not yet before the Employment Relations Authority, and which employment law representatives are divided on.
The first question is whether the imposition of mandatory vaccination amounts to a change of the terms and conditions of employment. It is my view that the requirement to vaccination can be differentiated on the basis that to be vaccinated, or not to be vaccinated, is a status or qualification of a person.
It is commonly held that a redundancy situation can occur when the employer changes the terms and conditions of the role to include a qualification. This can often occur as the needs of the business change, and the business decides that it requires a more qualified person to undertake the role. While the employee can provide feedback on the proposed change, if the proposal is implemented, the employee is made redundant as they do not have the qualification required for the role.
With reference to the drug testing cases, in New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc v Air New Zealand Limited it was held that the imposition of a drug and alcohol testing policy did not amount to a change of the terms and conditions of employment.
In reaching this decision, the Court held that if the policy did not amount to a variation of employment agreement, then it must be considered analogous with a direction or command.
However, in this instance, as previously discussed, there would be significant hurdles for an employer who argued that it had directed an employee to be vaccinated, and that their employment was subsequently terminated as a result of their failure to comply with that direction.
The overarching principle with redundancy is that it is a "no fault" situation, and it is my view that this further supports the necessity to categorise such situations as redundancies. Otherwise, there is the potential for post-employment hurt and humiliation, as the employee will be categorised as having been "terminated." This will raise questions with future employers, depriving the employee the fair opportunity to promptly re-enter the workforce.
Conclusion
Long story short: it is my view that an employer cannot terminate an employee's employment on the sole basis that the employee has refused to be vaccinated against COVID-19. However, the employer could conduct a restructure process which changes the requirements of the role to include vaccination; which could ultimately lead to the employee's redundancy.
However, the employer is required to undergo a fair and reasonable process which would include a considerable consultation process which would allow the affected employees to provide their feedback on the matter.
Legal AF Limited t/a Ashleigh the Advocate
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