Isabel Ward, with legal scholar Dr Bill Hodge, sets out the legal basis for private organisations bringing in vaccination policies for their workplaces and staff.

The question is: “May employers require their employees, upon pain of dismissal, to be vaccinated against Covid-19?”

The answer is, and we really are quite clear about this: “It all depends.”

On one hand, there is an individual’s legitimate expectation of bodily integrity, and the right not to be subjected to medical treatment without informed consent (New Zealand Bill of Rights, Act, s 11, as applicable to the public sector – those provisions do not apply directly to the private sector. The New Zealand Bill of Rights also offers protection against “medical experimentation” in s 10, but the High Court has held that the Pfizer vaccine is not “experimental”.)

On the other hand, there is a legitimate public interest in health and safety in the community (or the renowned “team of five million”), as well as the employer’s extensive statutory obligations of health and safety for all in the workplace. The Health and Safety at Work Act 2015 requires employers to ensure the health and safety of not only workers, but also any others in that workplace, by steps that are “reasonably practicable.”

New Zealand Bill of Rights Act is always subject to reasonable and justifiable limitations; an example of such limitations is the fluoridation of drinking water, upheld by the Supreme Court (New Health NZ Inc v South Taranaki District Council [2018]). As United States jurisprudence sometimes puts it, “ Bill of Rights is not a mutual suicide clause.”) And sitting behind modern statutes is the old common law maxim that “Salus populi suprema lex” (or, “the safety of the people is the highest law”).

In addition, an employer may be legally obliged to adhere to specific orders made under relevant legislation, such as the Health Act 1956 or the Covid-19 Public Health Response Act 2020. At time of writing, the Government has signalled that mandatory vaccination orders will be applied to the education and health sectors, as has been applied to border workers.

Such orders (for example, applied to teachers) would not exempt employers (such as boards of trustees) from considering redeployment for the anti-vax teacher; could the anti-vax teacher do all their work from home and all their teaching by Zoom?

Let us initially clear away several corollary issues.

First, this is about existing employees. An employer and an applicant for a vacancy are free to agree, under the Employment Relations Act, 2000, s 65, to such terms as they “think fit”. So long as the parties act in good faith, and the employee is given time to seek independent advice (medical or legal), the applicant may be told, “Our offer is conditional upon your Covid-19 vaccination – no jab, no job”.

Second, this is about employers acting as employers, not employers acting as occupiers of premises. Many employers operate significant facilities where members of the public may visit or enter by permission – hospitals, universities, supermarkets, sporting events, concerts, means of transport, and restaurants. As a general rule, occupiers may impose reasonable conditions of entry, and a vaccination passport may become such a condition of entry or participation. One would presume that if all guests and visitors are required to be vaccinated, the employees too will have attained a similar standard.

Third, this addresses the significant requirement of vaccination. Less invasive measures of control by employers, such as masking, social distancing, thermal imaging, or contact tracing are not considered here, but we presume that those lesser steps will not trench upon any fundamental rights. An employer may direct an employee not to risk the spread of Covid-19 in the workplace just as an employer of drivers may instruct those employees to obey the road code

Fourth, this is about the employer’s responsibilities to employees, not third party intervention. We anticipate, however, that we may soon see Worksafe NZ prosecute an employer who has not put in place a vaccination policy, such a policy being a reasonably practicable step to minimise the risk of Covid-19 in the workplace. A vaccinated employee may complain that he or she is being forced to work with possibly infectious unvaccinated co-workers.

The employer will have several procedural pathways or options to promote or impose vaccination in the workplace.

Mutual agreement: The simplest option may be to invite all existing employees to alter their existing employment agreements by the insertion of a vaccination clause. So long as the parties act in good faith, and employees are given an opportunity to take advice, parties may mutually agree to vary their employment agreements.

Redundancy: The employer, after consultation that is appropriate under s 4(4)(c) of the Employment Relations Act 2000, considering the significant change in the employer’s business, may announce that all existing positions, as defined in the respective agreements, are obsolete, and therefore redundant. All incumbents of those existing positions will be offered new positions, with identical terms and conditions, but with a vaccination clause. Those who decline to take up the new offer would not be entitled to a redundancy payout as they would have declined reasonable redeployment.

Roll out a policy: Assuming that there is not 100 percent take-up on the employer’s offer of variation of agreement, and redundancy is not preferred, a third option would be to roll out a policy, sitting alongside the agreement, which introduces the requirement of vaccination for continued employment. The closest precedent that we have for such an intrusive policy rollout might be the policy for compulsory random drug testing, by urinalysis, introduced by Air New Zealand nearly 20 years ago (and followed by many other employers), which was determined to be justifiable by the Employment Court (New Zealand Engineering, Printing, & Manufacturing Union Inc v Air New Zealand Ltd in 2004.

The policy rollout is subject to certain conditions. The employer must manage the risk, by considering whether the work can be done remotely, or from home. The employer must also provide for reasonable and meaningful consultation. The right to be consulted is not the right to veto, but a fair and reasonable employer would consider alternatives and other means of achieving a similar end. Key to an appropriate process is consultation, consultation, and more consultation.

Judicial consideration of vaccinations

The legal environment, as interpreted by courts here and overseas, is overwhelmingly supportive of steps to eliminate or suppress a pandemic.

The High Court reviewed the initial lockdown in March-April 2020 in the Borrowdale decision in 2020; although there were mis-steps in the first 8 days, the Court found the Government’s use of the Health Act 1956, s 70, was a “necessary, reasonable, proportionate response” to the pandemic. As a driver/justification of the Government’s lockdown measures, the Court noted that New Zealand was a member of the World Health Organisation, and its constitution enshrined “health [as] one of the fundamental rights of every human being.” In addition, New Zealand is a signatory to the International Covenant on Economic, Social and Political Rights which more specifically, at Article 12, cites the objective of “prevention, treatment, and control of epidemic, pandemic, occupational and other diseases.”

Private sector employers, of course, are not directly bound by international instruments, but such instruments tend to inform courts as to what policies might be fair and reasonable and whether action taken in pursuit of such policies would be justifiable. Although not a direct precedent, the Borrowdale judgment would exercise a gravitational pull on the Employment Court and the Employment Relations Authority, when considering unjustifiable dismissal claims made by unvaccinated ex-employees.

Another more recent High Court decision is GF v Minister of Covid-19 Response, where a former employee of the Customs Service sought judicial review of an Order made under the Covid-19 Public Health Response Act 2020, which required border workers to be vaccinated from April 30, 2021. Justice Churchman aptly described the purpose of the Order:

“It was because the affected workers may be exposed to, and infected by, Covid-19 in the course of their work and subsequently become vectors for transmitting the virus more widely.” The Court found the Order was fit for purpose and was neither unreasonable or irrational.

One of the arguments made by GF was that the consequence of the Order would be a “mass termination of employment” in the sector, but the evidence showed that over 95 percent of GF’s colleagues had been vaccinated.

GF had earlier lost her claim of unjustified dismissal in the Employment Relations Authority; the Authority found Customs had assessed the risk thoroughly, consulted extensively, and considered redeployment. GF’s dismissal was justified.

It would be fair to say the GF decision only relates to border workers in the public sector, but the Authority noted Customs had conducted a risk assessment before the Order’s commencement, and a dismissal of non-vaccinated persons may have been justified even in the absence of the Order. Together, the GF determination in the Authority and the related judgment in the High Court add to the gravitational pull of the Borrowdale judgment.

On October 1, the Employment Relations Authority rejected an application for interim reinstatement by four employees, or rather four ex-employees, of the Civil Aviation Authority. Like GF, above, they were public employees working on the border. They served in the Security Service Division and could potentially interact with inbound and outbound international travellers. As such, they were covered by the same Order that required border workers, such as GF, above, to have a Covid-19 vaccination. After considering potential redeployment, and consulting appropriately, the four employees were dismissed for refusing to accept vaccination. Their names were not published.

Australian judicial consideration

Three recent employment cases, all determinations of the Fair Work Commission, upheld employers’ mandatory flu vaccination directives.

In Barber, a “lead educator” in an early learning centre was dismissed following her refusal to take an influenza vaccination. The vaccine was held to be the most effective means of control, to protect other staff and children in care.

In Kimber, the dismissal of a receptionist at an aged care residential facility was upheld pursuant to a NSW Public Health Order.

In Glover, an aged care employee, who visited clients in their private homes in Queensland, was dismissed on the grounds that it would be a breach of the employer’s duty of care to send an unvaccinated worker into the homes of vulnerable people.

Although these cases arise in the context of compulsory influenza vaccination, they will have a significant bearing on Covid-19 vaccination claims. These decisions are not binding on New Zealand institutions, but will be of particular interest, especially where the employer’s client base is vulnerable. It may be noteworthy that the Waikato DHB introduced a mandatory influenza vaccination programme for staff in 2015, and there was at least one termination arising from that directive. No cases arose and compulsory flu vaccinations were not tested in the Authority or the Court here.

European consideration:

In Vavricka and Ors v The Czech Republic, the European Court of Human Rights upheld mandatory child vaccination. The vaccinations were called “routine”, and included polio and tetanus.

United States consideration:

In the Houston Methodist Hospital case, a federal court declined to overturn the dismissal of some 117 employees, who refused to comply with a compulsory Covid-19 vaccination policy. HMH was the first major healthcare provider in the US to mandate vaccinations for all staff. At the time of the decision, some 24,947 employees had complied.

In the Indiana University case, a major public university with up to 90,000 students across its several campuses adopted a policy for that required all staff and students to be vaccinated. Unvaccinated students were barred from campus, although on-line programmes were available. A federal court declined to give relief to a claim brought by eight students.

The overwhelming indication from these compulsory Covid-19 vaccinations cases, the first of their kind, is that mandating Covid-19 vaccinations in employment, as well as for other parties engaging with the employer, is essential for the greater good. So much so, that individual liberties can be justifiably curtailed.

Conclusions: It seems increasingly likely that both private sector and public sector employers will succeed in establishing pro-vaccine workplaces, but that conclusion is prefaced on employers performing a risk analysis and a genuine consultation/educational programme. A pro-vaccination policy would seem to be “reasonably practicable”, and a vaccinated workforce would signal to the employees, and provide assurance to the public interacting with the workplace, that the employer has discharged their health and safety duties.

The Government may provide clarity and certainty in sectors such as education and health, by an order such as that applicable now to border workers, but even there, employers – such as boards of trustees – will need to consider whether redeployment is possible. Dismissal would only be the last resort, but it would be a justifiable last resort.

It may be refreshing to review the purpose of Covid-19 vaccinations, as set out in a deposition by Dr Ashley Bloomfield, Director-General of Health, and affirmatively quoted by the High Court in the judicial review case:

➢ protecting the vaccinated person by preventing that person from contracting the disease, or if the person contracts the disease, by considerably lessening the severity of their symptoms and the chance of the disease being fatal;

➢ reducing the chances of the vaccinated person spreading the disease, either because they will not contract the disease and therefore will not be a link in the chain of transmission or because with less severe symptoms they are likely to have a lower viral load and are less likely to exhibit symptoms that spread the disease such as coughing and sneezing;

➢ once a large enough proportion of the community is vaccinated, vaccination will also protect those who are vulnerable in the community and those who cannot be vaccinated from the disease;

Covid-19 has created a “new normal.”

No one wanted it, and no one asked for it. But it is here to stay, at least for the foreseeable future, and we are forced to adapt.

So too is the legal environment.

Dr Bill Hodge is an honorary academic in the University of Auckland law school.

Leave a comment