Kylie Dunn says a staff member never going into the office might be difficult to maintain in the long run. Photo: Supplied

Businesses warned to treat High Court rejection of a Police and Defence vaccine mandates as a ‘cautionary tale’.

Employment law experts say businesses with Covid-19 vaccination policies need to ensure they have done their homework, after a Government mandate was overturned.

An order that required Police and Defence Force staff to be fully vaccinated by the start of March or lose their jobs will be revoked after the High Court found it to be unlawful.

A crucial aspect of the judge’s decision was that the mandate had been imposed to ensure the continuity of Police and Defence Force services, and the public’s confidence in these services, rather than preventing the spread of the virus.

Justice Francis Cooke said while the virus was a clear threat to the continuity of Police and Defence Force services, particularly because the Omicron variant was so transmissible, this threat existed for both vaccinated and unvaccinated staff.

Justice Cooke was not satisfied the mandate would make any material difference to the services.

Over in the private sector, Fletcher Building and Fonterra were among the companies that have enforced, or would be enforcing, a vaccine requirement for staff following a risk assessment and consultation with staff. Another big employer, Auckland Council, also had a similar policy.

All three told Newsroom there would be no change to their requirement for staff to be vaccinated in light of the court decision.

However, according to employment law experts, employers that have required their own staff to be vaccinated will need to have done their homework.

BusinessNZ employment relations manager Paul McKay said the overturned mandate had relied on a public health order, while workplace vaccination policies rested on health and safety legislation.

He said employers have to use risk assessments specific to each job and prove a person was at risk if they were not vaccinated, and it was therefore reasonable to require the worker to be immunised.

The Government’s vaccination assessment tool and WorkSafe’s risk assessment guidance were among the frameworks employers should refer to.

These considered factors such as the size of an indoor workspace, whether workers would come into contact with vulnerable people, and whether workers can maintain physical distance from other people.

Legal challenges over vaccine policies expected

One thing executives might be worried about is facing legal action themselves over their vaccination policy.

Paul McKay said it was possible a disgruntled unvaccinated employee who had been let go, or someone who had been refused a job, could try to raise a personal grievance.

If the employer had followed proper process, including undertaking a risk assessment that showed it was reasonable to require the worker in a particular role to be vaccinated, it would be hard to show that the dismissal or job refusal was unjustified.

For unvaccinated staff who could work from home, the Employment Relations Act required employers to exhaust all other possible alternatives and options before terminating someone’s employment. 

“For the most part, policies are about requiring only vaccinated people into the office. If someone is able to do their job from home, it would be difficult, albeit not impossible, to justify a termination of employment.”
– Kylie Dunn, Russell McVeagh

Employment lawyer and Russell McVeagh partner Kylie Dunn expected to see legal cases arise centred around whether it was fair for employers to impose a vaccination policy for staff working from home.

She said employers should consult and talk with staff before imposing a vaccine policy, as a record of genuine engagement with concerned individuals would put an employer in the best possible position if the case did end up before the courts.

“You can learn a lot about what’s happening with an employee. For example, they might need more time… or if they’re waiting for the Novavax vaccine to become more readily available,” she said.

“For the most part, policies are about requiring only vaccinated people into the office. If someone is able to do their job from home, it would be difficult, albeit not impossible, to justify a termination of employment,” she said.

While some companies would have arranged to allow unvaccinated staff to work from home for now, this arrangement might not be feasible in the long run. 

Plenty of people could do their jobs from home during a lockdown or during an Omicron outbreak, but Dunn said it might not be feasible to have one person work from home full-time with no in-person contact.

Fletcher Building, for example, argued when imposing its mandate that there were health and safety implications even when unvaccinated employees were in roles where they work from home.

“The risk assessment we undertook is based on the fact everyone will need to come to the office at some time for different things – for example teamwork, learning and development etc – and we want everyone to be safe when this happens,” a spokesperson said.

A ‘cautionary tale’

Employment lawyer and senior associate at Duncan Cotterill, Alastair Espie, said employers should take heed of the “cautionary tale” behind the Government’s crumbled mandate.

He said companies should be crystal clear on the reasons behind their policy, as well as considering whether their mandate was still likely to achieve its goal going forward.

For example, if a business was putting a mandate in place purely to reduce the spread of the virus among workers, that reason may not be as robust following widespread transmission in the community.

But if workers were required to be vaccinated to keep them safe from the serious health effects of Covid, Espie said an employer may stand on stronger legal ground, as the Health and Safety at Work Act required them to take reasonably practicable steps to eliminate or minimise risks to wellbeing.

McKay did not rule out future cases changing the game and he advised employers to continue business as usual, while using common sense and referring to the relevant frameworks such as the Government’s vaccination assessment tool, and the Health and Safety Act.

“If you’ve done a risk assessment and you deem that jobs can’t be done safely without being vaccinated, for instance, then you’re okay to continue doing that,” he said.

Vaccine pass set to face challenge

Newsroom understands the Government will not be moving with any great urgency to appeal the High Court’s ruling, nor rush to repeal mandates more widely.

However, this was not the last legal challenge the Government expected to face. A lawyer who claimed to represent more than 200 uniformed staff wrote to the Prime Minister to inform her further court action would be taken if vaccine certificates were not removed by today.

Espie said businesses should follow the outcome of the legal challenge to vaccine passes, but he did not expect the “floodgates” to be opened and other orders overturned after the Police and Defence Force mandate flopped.

McKay agreed, saying employers were entitled to check vaccine certificates.

“It’s perfectly within the rights of any given business to say, ‘I don’t want anybody coming in here who might pose a risk to my staff’.”

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