As we come closer to receiving a COVID-19 vaccination in New Zealand our attention turns to not only how this will be rolled out and the take-up, but how it is or is not enforced.
It is well known that in order to develop herd immunity to COVID-19, the take-up rate of the vaccine needs to be at 75-80%. It is also known from the personal experience of most business owners in New Zealand that another outbreak could be disastrous from an economic perspective. The community transmission case in Northland this January has bought renewed nervousness that it could be a real possibility.
So – what does this mean for employers? For new employees it could be simple – in theory – in that employers ‘could’ include a clause in any new IEA’s mandating proof of vaccination as a pre-condition of employment unless there is a medical dispensation.
However, this does lead us to how this concept could affect existing employment relationships.
In some cases, such as medical or front-line workers, there could be a reasonable argument for vaccination to be mandatory, however, with all variations to employment, this would still need to undergo consultation and agreement by both parties to the relationship.
As an employer, the boundaries appear blurred – can you refuse work or access to work for people who refuse vaccination? Given that you cannot force people to have an invasive procedure under the Human Rights Act, this could prove tenuous. However, providing a safe and healthy workplace is a requirement under the Health & Safety at Work Act, so you are then failing your obligations to those who are immunocompromised and cannot receive a vaccination (or are carers for a person in this category).
If you have an immunocompromised employee and there is another outbreak, can you tell the unvaccinated person to stay at home? Is this paid leave? Are you opening yourself up to a PG?
These are legal conundrums that will come down to circumstances and what is expected of a fair and reasonable employer, which clearly in this situation, is not terribly helpful. Maybe this is a case of MBIE giving solid guidance as to what this might look like. It is open for debate, so watch this space…
