COVID-19, Vaccines And Employers

October 12th, 2021

Can employers require employees to take a vaccine?

Two different forces are at work here- the Health and Safety, and Human Rights.

Section 36 of the Health and Safety at Work Act 2015 requires that employers provide and maintain a work environment that is without risks to health and safety. Many would interpret a safe workplace environment as one that is free from the risk of transmission of COVID-19. This is especially true for immunocompromised people, who have an increased fatality risk from COVID-19 and are unable to be vaccinated.

At the same time, Human Rights considerations come into play. The New Zealand Bill of Rights Act 1990 states that everyone has the right to refuse to undergo any medical treatment. The Human Rights Act 1993 states that disability (including physical illness) and ethical belief are prohibited grounds of discrimination.

Can an employer really force an employee to have a jab, or terminate their employment?

The COVID-19 Public Health Response (Vaccinations) Order 2021 states that in certain circumstances, workers may not carry out work unless they are vaccinated, and that employers may not allow workers to carry out work unless satisfied they are vaccinated.

If one of these so-called affected workers refuses to be vaccinated, they will be unable to carry out their role. Can they be dismissed?

The answer is not clear. Certainly, dismissal should be a last resort. If redeployment is an option, this should be explored.

Every workplace sits on a sliding scale of potential exposure to COVID-19. Workers at a law firm are less exposed than those at a medical clinic. This may mean that it is more important that workers at the latter are vaccinated, and therefore more reasonable to demand vaccination.

Undoubtedly, the legislature and judiciary will clarify the law around this sensitive issue. Human lives are at stake, as are human rights.

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