Vaccine Mandates in the Workplace – where do I stand?

As the Government mandates vaccines for teachers and health care workers, where does this leave employers and employees in the entertainment technology sector?

New Zealand will require teachers and workers in the health and disability sectors to be fully vaccinated against COVID-19, the Government announced on Monday. Health and disability sector workers will have to be fully vaccinated by December 1, while school and early learning staff must get their two doses by January 1. Advice from the Ministry of Education has stated that this mandate applies to all staff members working on site in schools and kura who may have contact with children and students, and any community members who regularly come onto school grounds. That includes teachers, teacher-aides, caretakers, administration staff and parent volunteers. Put simply, the mandate has a very broad application.

The Employers & Manufacturers Association (EMA) had released a statement a week earlier calling for the mandatory carrying of digital vaccine passports to enter the workplace, with digital exemptions and extra precautions applying to those who can’t or choose not to be vaccinated. Chief Executive Brett O’Riley said carrying the passport will give employers and employees the certainty and the safety they want in their workplace and will give an incentive to those hesitant about getting vaccinated, “Under health and safety legislation employers have to provide a safe and healthy workplace for their workers and carrying vaccine passports is one way to do this.” Business NZ chief executive Kirk Hope agreed, “Mandating vaccinations makes it easier for employers because there are fewer grey areas.”

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The New Zealand Council of Trade Unions Te Kauae Kaimahi released its COVID-19 vaccination policy on 29 September, encouraging employers to make it as easy as possible for employees to get vaccinated by supporting employees to get vaccinated in paid work time, providing accurate and clear information, and having a zero tolerance approach to misinformation spread with intent to scare and anger people, “The goal is that people want to get vaccinated because they understand the benefits to themselves and the people they love. But if people don’t want to get vaccinated then their employer must not be able to force them. If someone is in a role which does require them to be fully vaccinated, then it is our recommendation that the worker be redeployed into a different role within the organisation as negotiated with the individual and their union.”

Teacher Unions are still seeking legal advice since Monday’s announcement but are referencing a test case that was upheld when the mandatory vaccination of border workers was brought in. They are currently advising their members that if they cannot be vaccinated for medical reasons and have medical certificates to support this then they should be given alternative duties where there is no risk of transmission, such as remote teaching. Where it is personal choice, they must provide ongoing weekly evidence of a negative COVID test until 1 January at which point their employer cannot allow them on site, and the Union will support them to ensure a fair and just process is followed.

Current legal advice to other businesses looks to the Health and Safety At Work Act 2015 and the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016. These require PCBUs to identify hazards that could give rise to reasonably foreseeable risks to health and safety. When it is not reasonably practicable for a PCBU to eliminate risks to health and safety, they should then implement control measures to minimise these risks. All in the entertainment technology industry are familiar with the risk register: mandatory vaccination would be viewed as an elimination strategy, and mask wearing, social distancing and remote working as minimisation strategies.

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Employsure, who work predominantly with small to medium sized businesses across New Zealand and Australia, offer practical guidance. On ascertaining staff’s vaccination status they advise that whilst it is lawful and reasonable in the current circumstances for employers to require employees to disclose their vaccination status or provide a reason for their refusal to be vaccinated as part of a mandatory vaccination policy, workers do not have to tell their employer if they have been vaccinated, or even give a reason behind it.

Where someone does not wish to disclose, Employsure see it as an opportunity for both parties to discuss the worker’s concerns about disclosing their vaccination status or reason for refusal. If the worker is still not forthcoming, employers may need to assume the worker is unvaccinated, inform the worker of that assumption, and arrange suitable duties for the worker to accommodate the health and safety requirements of the business.

In circumstances where employers cannot reasonably direct their employees to receive the COVID-19 vaccine, employers should consult with employees who are unable, or don’t want to have the COVID-19 vaccine, and discuss alternative measures that can help them do their job safely. Together they should explore all reasonable alternatives, such as working from home or another location, alternative duties, additional PPE or enhanced safety practices.

Employsure point out very clearly that at this time vaccinations are only mandatory for certain work under a Government public health order. As such, while employers may seek to mandate vaccinations for the health of their staff, there is currently no explicit law in legislation for employers to direct their employees to comply with outside of specific industries and occupations. Those who want their staff vaccinated may see themselves hit with an unjustified dismissal claim, if an employee were sacked as a result of refusing the jab, due to the direction not being reasonable.

What is reasonable? Wyn Williams, lawyers who work across many business sectors including hospitality and construction, cite a recent Australian case where the Fair Work Commission upheld the dismissal of an employee in an early childhood centre who refused to be vaccinated against influenza. The Commission based its decision on two factors: that the employer had a duty of care to its workers and the children under its care, and that mitigation measures such as PPE and social distancing were not practical in a childcare environment, potentially pertinent factors to other workplaces.  

Wyn Williams advice for employers is, “With the current Delta variant issues facing New Zealand, we consider more employers will have a justifiable basis for instituting a mandatory vaccination policy.  It will be important for employers seeking to implement such a policy to run a thorough consultation process with its staff on the policy. The consultation process will also be a good opportunity to engage with vaccine hesitant staff and to encourage them to get vaccinated.”

Employsure concur, “Vaccination can be considered as one way to achieve this but all reasonable measures to control the risk of transmission and infection should be considered. Employers must consult with workers regarding risk management strategies, which may be an excellent opportunity to discuss a vaccination program and discuss any concerns.”