The employment sting in the jab for employers and employees
Yesterday’s government announcement that the health order requiring mandatory vaccination of border workers will be expanding necessitates a reminder that employment law is very relevant in an uncertain COVID-19 world as we grapple with political change and directions. The effect of this order in relation to employee rights and employer obligations is a matter of hotly debated conjecture. A health order does not mean that employers can skip over the legislative requirements of good faith, consultation, and agreement. Employment laws still prevail even if an unvaccinated worker is doing a job that can only be done by a vaccinated worker.
PM Jacinda Ardern recognized when announcing the expansion of the health order that the move is an “extraordinary step to mandate and to tell someone who may for instance be employed by a private sector employer that they will not be able to work in their job until they are vaccinated. That is a very big step”.
Both public and private sector employers need to talk to employees about the new requirements. If an employee refuses to get the vaccine, that cannot mean automatic termination. First, the employer needs to make sure that the health order applies to the workers in question. Not all workers on a border line may actually be working on the border. Blanket rules cannot be applied. Robust conversations need to be had around workers’ roles and associated risks. Obligations of good faith still exist.
It possibly is the action of a fair and reasonable employer to terminate an employment relationship where a health order, and health and safety requirements, applies to a worker who is refusing the vaccine and there are no reasonable redeployment options.
Employers beware they must have a robust process in place and follow it to determine whether it is fair and reasonable to terminate. However, termination must be the last option. Getting it wrong, may be costly for an employer. There is already one legal challenge on behalf of dismissed frontline customs workers before the employment court waiting determination.
Employers should consider whether there are other tasks the employee could undertake and consider is redeployment an option? Is leave until they can get the vaccine an option? Do not jump the gun. Unilateral actions by employers are unlawful. Everyone must remain wary of employment obligations to act in good faith and reasonably in the circumstances. These obligations also apply to employees having these conversations with their employers.
If you are either an employer or employee and are unsure of your rights get advice first. Buckettlaw can help.