Businesses are struggling with what to do around Covid vaccinations in the workforce, with oft-conflicting legislation and little clarity from Government. Newsroom checked out companies’ five most gnarly questions and asked two employment law experts for their answers
Vaccinations, and the rules around workers getting the jab – or not – are a new, massive headache for businesses post the latest lockdown. Of 200 or so calls the Employers and Manufacturers Association helplines get every day, more are about vaccinations than anything else, says EMA’s head of advocacy and strategy Alan McDonald.
For example: ‘My client says only vaccinated workers can come onto their construction site. What do I do?’ Or: ‘A vaccinated employee won’t come to work because a co-worker is unvaccinated.’ Or ‘Can I introduce a vaccine mandate for existing staff in my company? What about for new staff? Can I even ask people if they are vaccinated?’
“It’s the single biggest issue we are dealing with at the moment,” McDonald says. “There’s general confusion, worry, and concern about what companies can and cannot do.”
The big problem is there are several bits of legislation that impact on vaccinations and employment – all sound, well-intentioned laws, but often conflicting.
Health and Safety at Work, Privacy, Human Rights, Employment Relations and the Bill of Rights, are all relevant in part. There’s not much guidance from Government, and no case law so far – this is all too new.
Adding to the difficulty is vaccinations are something people feel strongly, sometimes very strongly, about. And they are of critical importance not only to people’s health but also to business and the country’s economy.
The most recent modelling from University of Auckland-based Centre of Research Excellence Te Pūnaha Matatini found New Zealand might not need further lockdowns if 90 percent of the population was vaccinated.
Newsroom asked business leaders for their biggest vaccination-related headaches. Then we asked two employment law experts, Bell Gully partner Tim Clarke and Duncan Cotterill partner Olivia Lund, for some (free) advice.
1. Everyone should be getting vaccinated. Can’t we mandate it at my workplace?
Basically no, because under the Bill of Rights, anyone can refuse to have medical treatment, including vaccinations.
There are exceptions: a public health order makes it compulsory for people in MIQ and most high risk border roles to be vaccinated, and it’s likely the Government will expand that order to cover, say, aged care and some health care workers, though that hasn’t happened yet.
There’s also an option to carry out a health and safety risk assessment if a company thinks there are specific roles in which workers should be vaccinated. But the bar is high – there has to be a high likelihood the person performing the role may be exposed to Covid-19 and that the consequences would be significant for other people. As part of the risk assessment decision, a company has to consult with workers, unions and other representatives and make sure there aren’t any other ways to keep everyone safe, like PPE or physical distancing.
Government guidelines make it clear mandates will be the exception not the rule.
“Reasons for requiring vaccination other than health and safety are unlikely to be sufficient, for example, requiring vaccination to promote your workplace as being fully vaccinated. This would amount to requiring workers to undergo a form of medical treatment solely for a marketing benefit.”
“At the moment the Government is leaving it up to business to determine, but it’s such a grey area. Even lawyers struggle.”
– Olivia Lund
Trying to work out whether a role meets the risk assessment criteria is far from easy, Olivia Lund says – it’s not like there is a form to fill in, or a scorecard.
“At the moment the Government is leaving it up to business to determine, but it’s such a grey area. Even lawyers struggle.”
Meanwhile, even being covered under the public health order provision isn’t watertight for companies wanting a vaccinated workforce. The case of a Customs worker dismissed from her job for refusing to get vaccinated is being challenged in court.
2. What about making vaccinations mandatory for new employees?
You could try – and companies are doing it. Business Leaders Health and Safety Forum guidance around vaccination policy published on September 14 noted that “clauses about being vaccinated to be employed (a pre-employment requirement) are becoming more common.”
Many companies have already put these clauses into new and current agreements, the forum said, and have updated recruitment sites to make sure anyone applying for work is fully aware of the vaccination requirement.
True, it may seem easier to mandate vaccinations if you don’t have to make changes to someone’s contract. But similar legal fishhooks apply as with existing staff, Clarke and Lund argue. Businesses could still be forced to justify in court why vaccination is required for a particular role.
For example, just collecting the information about whether a job applicant is vaccinated or not could breach Privacy Act rules, which state you can only collect personal information that’s necessary for a lawful purpose.
(The same provision makes it hard for most companies to find out whether their staff are vaccinated or not. You can ask people, but they don’t have to tell you.)
“You can put it in the contract, but you face the risk that person will challenge it”
– Tim Clarke
Meanwhile, taking on only vaccinated people for a particular role could see an employer fall foul of anti-discrimination rules under section 21 of the Human Rights Act – unless there are legitimate health and safety reasons for that role to need vaccinated staff (see above).
And an individual’s right to refuse medical treatment in the Bill of Rights still applies for potential staff.
“You can put it in the contract, but you face the risk that person will challenge it,” Tim Clarke says.
3. What do you do if a client refuses to allow unvaccinated workers into their building or onto their site?
That’s a thorny one – and a situation that’s cropping up a lot with the move to Level 3 lockdown, industry sources say. Just this week, Auckland firm Teak Construction sent an email to subcontractors saying people without proof of at least one Covid jab wouldn’t be allowed on building sites or the company’s head office.
Teak site manager Richard Harrison said as an employer, the company had an obligation to keep its staff and people on its sites safe.
It seems a fair enough argument. Under the Health and Safety at Work Act, businesses “must ensure, so far as is reasonably practicable, the health and safety of workers, and that other persons are not put at risk by its work.”
Keeping unvaccinated people off a site or out of an office would seem a sensible step to minimise the risk of people catching or spreading Covid.
Moreover construction workers, or sales people, could be seen as higher risk – they often move around between different jobs, sites or buildings.
But in the background are still those other provisions: people’s right to keep their vaccination status secret, to be protected from discrimination, and to have their human rights upheld. There might be a valid health and safety reason to keep unvaccinated people out – maybe there are vulnerable people around, or it’s a high risk place like a hospital or care home.
“People are frustrated. They are saying ‘Just tell us what to do’.”
– Olivia Lund
But then again, there might not, in which case there could be legal problems.
Once again, it’s just not clear, Olivia Lund says.
“It’s an exercise about competing priorities – whose rights trump another? But there’s no hard and fast rule. No guidance. It’s complex.
“People are frustrated. They are saying ‘Just tell us what to do’.”
Then there’s the issue of who would be liable to pay for any delays in a project if a client’s refusal to allow unvaccinated workers on site slowed work down or stopped it altogether.
That likely depends which side is right, Clarke says – whether the client has justified grounds for locking unvaccinated people out, or not.
“You’ll end up in dispute.”
Clarke says the whole area around employers and vaccines is uncharted territory for employment lawyers and their clients. “We don’t have the benefit of statutes and guidance from Government, so we are working off first principles.”
It’s also fast-moving, because the situation could change depending on Government strategy and the number of cases. Risks will be lower with an elimination strategy, but might rise as the borders open up.
“Maybe in month’s time our thinking will have changed.”
4. What happens if someone refuses to go to work because another person in their workplace isn’t vaccinated, but still wants to be paid?
Here’s another increasingly common problem to arise since the most recent return to work following lockdown, industry sources say.
Under section 83 of the Health and Safety at Work Act “a worker may cease, or refuse to carry out, work if the worker believes that carrying out the work would expose them to a serious risk… or imminent exposure to a hazard”.
People are rightfully scared of Covid, and know vaccination provides a good level of protection. An vaccinated person, particularly a vulnerable one, might rightly be nervous about sitting on a packing line, or in an office next to an unvaccinated co-worker.
But why should they lose wages when it’s the other staffer creating a potentially hazardous situation?
The answer to this question is a tad clearer than in some of the other situations, Tim Clarke says. The likelihood of a staff member walking out because of exposure to a workplace hazard might be rare in an office – pre-Covid at least – but it’s more common in riskier industries, and there are processes under the law to deal with it.
“The onus is on the employee to prove the situation is unsafe and a significant risk,” Clarke says, and then the company needs to do a risk assessment. If there’s a risk, then the company needs to eliminate or minimise the risk “so far as is reasonably practicable”.
The guidelines say the greater the potential harm, the greater the action required. “For risks that have unacceptable outcomes even if they have a low likelihood of occurring, look at credible worst case scenarios.”
The analysis around Covid risk will come down to what the business is – risks from working in an airline will be likely be higher than working in an accounting firm, for example – and what sort of preventative measures are possible – masks, distancing, plastic screens, frequent sanitising, or deploying one of the staffers to another role.
If the two sides can’t agree, there are Worksafe people who can come in to help resolve the problem, Clarke says.
In March last year, workers at the Sistema plastic container factory walked out, saying the company wasn’t doing enough to protect them from Covid, including not giving them adequate protective gear.
“They have also been required to keep working on production lines, often standing less than a metre apart for hours at a time,” Annie Newman of the E tū union said at the time. “With this being clearly unacceptable, workers have now gathered in the car park and some have gone home.”
After Worksafe was brought in, masks and distancing were introduced and the workers went back to the factory.
Clarke says if in the end, an employer has done everything reasonably practicable and Worksafe agrees the risk is low, but the worker still refuses to come to work, then a company could start action to dismiss them.
5. Is there a risk of workplace bullying around vaccinations?
Undoubtedly, the issue of Covid vaccinations is stirring up strong emotions. The Victorian state government Victorian government was forced recently to shut down all construction sites in metropolitan Melbourne after violent anti-vaccine protests. Similar Covid vaccination-related clashes are taking place elsewhere.
Australian-based anti-bullying expert Maureen Kyne says increased pressure on workers to get their Covid jabs means there’s a risk non-vaccinated staffers could get ostracised.
An interview Kyne did with Human Resources Director magazine reminds companies any vaccination mandate has to be “lawful and reasonable” and include caveats for those who may not be able to have the vaccine, whether on religious or medical grounds.
“Mandatory vaccinations also open up the risk of separating those employees from the rest of their colleagues, causing knock-on effects on their mental health and wellbeing.”
Olivia Lund says companies should have policies around the importance of employees being respectful and not belittling or demeaning other staff members. Attitudes around the Covid vaccine are no different.
“This is such a polarising issue, but they need to remind people that whether to undergo medical treatment is a personal right and need to set guidelines around expectations of acceptable and unacceptable conduct.”
Are you hitting any tricky vaccine-related issues in your workplace? Contact me – nikki.mandow@newsroom.co.nz
