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COVID-19:  No Jab, No Job?

By Nikki Farrell

COVID-19: No Jab, No Job?

With the arrival of the covid-19 vaccine into New Zealand, some employers are asking whether they can require employees to be vaccinated. We’ve put together some helpful questions and answers about the vaccine and employment rights.

Is it mandatory to receive the vaccine?

There is currently no law that makes vaccines mandatory. Section 11 of the New Zealand Bill of Rights Act 1990 gives everyone the right to refuse to undergo any medical treatment. Medical treatment would include receiving a vaccination. Unless the law changes, which is unlikely as a general rule, New Zealanders cannot be forced to receive the vaccine.

Can certain roles require vaccination?

In some circumstances, an employer may lawfully require a specific role to be performed by a vaccinated person. For example, medical staff involved in treating covid patients may need to be vaccinated to perform the role. Employers would first need to do a health and safety risk assessment to ascertain whether a particular role requires the employee to be vaccinated. Consultation with workers, unions and representatives would also be required.

The Health and Safety at Work Act 2015 requires employers to provide workers so far as is reasonably practicable with the highest level of protection from workplace health and safety risks. Workers also have a duty to take reasonable care to keep themselves healthy and safe and to not adversely affect the health and safety of others. There may be some roles that require workers to be vaccinated in order to be protected from health and safety risks. That will depend on the role and the workplace. There cannot be a blanket rule requiring all employees and workers in a particular workplace to be vaccinated.

Can my employment agreement be changed to require vaccination?

A variation to an employment agreement cannot be unilateral and would require a negotiation between the employer and the employee. By agreement between the parties, an employment agreement can be varied to change an existing condition of an employment agreement. The need to vary the agreement would also depend on why the role requires the employee to be vaccinated. The process would have to follow the good faith principles.

The employer would also need to consider alternatives if an individual does not want to be vaccinated. Is there alternative work available? Is the vaccine really a requirement of the job? Can the employer perform the role at home?

I can’t take the vaccine – will I lose my job?

Some people are unable to receive vaccines. This may be due to religious beliefs or medical reasons (for example, immuno-compromised). If a role does require vaccination, and the employee does not want to, or cannot, be vaccinated, the employer could make changes to the employee’s duties for health and safety reasons. Following consultation with employees, it may be suitable to consider a new work arrangement or alternative duties. The process must be fair and reasonable and undertaken in good faith.

The Human Rights Act 1993 protects people from unlawful discrimination in their employment. Employers would need to be careful that employees who don’t or can’t take the vaccine are not discriminated against. An employee who is discriminated against in their workplace on the grounds of their religious beliefs, ethical grounds or a medical condition (e.g. a condition that stops them being able to receive the vaccine) could make a complaint against their employer to the Human Rights Commission.

Can I be dismissed if I don’t want to take the vaccine?

No, you cannot be dismissed if you are an existing employee and your employment agreement does not require you to have the vaccine to do your job. However, employers have to ensure their staff’s safety. We suggest you obtain legal advice if the position suddenly becomes unsafe for the employee to continue to work unless they are vaccinated. As with all employment relationships, the duty of good faith applies. It would be very unlikely to justify dismissal if an existing employee refused to undertake the vaccine.

I’m starting a new job and receiving the covid vaccine is a requirement. Is that legal?

Yes, it is legal. Employers could require new employees to be vaccinated as a term of their employment agreement. The requirement for vaccination would be dependent on the role.

Care would need to be taken to ensure those who, due to religious beliefs or a medical condition, are not discriminated against for not receiving the vaccine.    

Will I have to take a day off work to receive the vaccine?

This will depend on your employer. The Ministry of Business, Innovation and Employment encourages employers to allow their workers to get vaccinated at work, or allow the workers to get vaccinated during work hours on full pay. 

For further advice, contact Nikki Farrell P: 04 916 6458, E: nikki.farrell@gibsonsheat.com.