COVID-19 vaccinations and the workplace

Written by Angie Sun with Bruce Reid

There is a sense of weariness about COVID-19 as we reach the end of month 20[1] of the pandemic in NZ. We’ve had two level 4 lockdowns nationally, with Auckland enduring even lengthier restrictions. As the vaccination campaign ramps up, getting everyone immunised is the government’s strategy to bring us back to some level of normality. In light of this development, some employers and employees are taking the approach of: “No jab, no job?” But what if you don’t want to get vaccinated? Could this mean the end of your employment? Or what if you strongly believe in getting the jab but your co-worker does not? What does this mean for the workplace of the future?

This is really a story of competing rights:

  • Employees as individuals have a right to do what they want with their health.
  • Employers have the responsibility of maintaining a safe work environment for all their employees.
  • We all have a responsibility to look after our community.

What does this mean for workplaces?

This week, the Government has announced that it is now mandatory for our education and health and disability workforces to be vaccinated. An amendment will be made to the COVID-19 Public Health Response (Vaccinations) Order 2021 that will require a new set of workers in the health and disability sector to be fully vaccinated by 1 December 2021.

From 1 January 2022, schools and early learning services and providers will need to maintain a register and ensure only vaccinated staff and support people have contact with children and students. They need to have their first dose by 15 November 2021. This includes home-based educators, and all those support people in our schools and early learning services such as teacher-aides, administration and maintenance staff and contractors.

The COVID-19 Public Health Response (Vaccinations) Order 2021 came into effect on 14 July 2021 and identified roles that must be carried out by a vaccinated person. The Order mostly affected border workers because they were, at the time, in contact with the only avenue which allowed COVID-19 to spread in the community– from overseas transmission. This legislation aimed to protect communities by strengthening the borders. The Employment Relations Authority recently ruled that the dismissal of a maritime port worker, known only as GF, was justified. Her position was affected by the Order, but she chose not to be vaccinated and, therefore, could not continue in that role. This matter was then taken to the High Court to determine whether the Order was lawfully enacted, but the judge dismissed the arguments finding for the Employer.

This was not the only employment case drawing attention. A group of Defence Force personnel have also taken court action to retain their jobs after refusing the vaccine. While there is already a requirement that recruits must obtain specific vaccines before they can join the Defence Force, which the members of this group would have received, they claim that this action is a challenge to protect: “fundamental freedom to decline medical treatment without then being treated prejudicially.”

The legal framework

The fundamental freedom these Defence Force members refer to can be found in New Zealand’s Bill of Rights. It states that people have the right to refuse medication, including a vaccine.

The Human Rights Act also prevents people from being discriminated against based on their health status, including whether someone is vaccinated.

Conversely, employers have an obligation under the Health and Safety Act to mitigate risks in the workplace, thus a responsibility to minimise the risk of COVID-19 transmission for all staff.

All of this illustrates that mandatory vaccination in the workplace is a grey area. Both employers and employees will have anxiety about what is the right thing to do. In this moment of ambiguity, the best way forward is to be open and communicative with one another. This is a moment in which employers and employees can display good faith, crucial in an employment relationship.

Relying on the Court to make a decision when employers and employees can’t reach agreement can bring significant expense and delay, and should be avoided wherever possible as it could put further strain on the relationship. Facilitated discussions provide a safe and impartial opportunity to explore misgivings which employees may have as to vaccinations. A successful discussion does not necessarily mean that parties leave the table having made up their minds or made their decision - simply that they have the support to make a decision.

Whether it is agreement on the next steps of the decision-making process or simply agreement to respect one another’s views, the employment relationship has thereby been strengthened moving forward. Fair Way Resolution has skilful practitioners who can help facilitate these difficult conversations.

Your next steps 

Fair Way offers a full COVID-19 facilitation service, enabling constructive conversation between employers and employees on the topics surrounding vaccination and employment. These sessions are informed by the latest legal information, with the aim of helping parties map out a mutually beneficial way forward.

We are experts in resolving conflict at work. Employers across Aotearoa partner with Fair Way to proactively improve wellbeing, build internal capability and positively address conflict.   

If you would like to find out more about Fair Way’s facilitation and other workplace services (including our Employee Liaison Service), please get in get in touch via civiladr@fairwayresolution.com or 0800 77 44 08. 

Footnote:
[1] This time period was calculated from March 2020 to October 2021.