This article was written by Ireland Hendry-Tennent, and published on Newshub (27 August 2021).

As the Delta outbreak continues to grow and New Zealand’s vaccine rollout ramps up, there are questions around whether employers can fire people for refusing to get the jab.

Last month the Government expanded its mandatory vaccine requirements to include workers at ports and airports who are at the greatest risk of exposure to COVID-19.

The requirement will apply to staff handling items removed from ships, aircraft or MIQ facilities, as well as accommodation services where specified aircrew members are self-isolating.

It will also include work where the job is for a company that is routinely engaged to provide services for an aircraft, ship, or MIQ facility, and where an employee ‘has contact with’ people who belong to different groups covered by the requirement. The new order came into effect in July. It was already mandatory for managed isolation and quarantine (MIQ) staff to be vaccinated.

And recently a select committee meeting opened a can of worms after questioning whether private employers can fire staff who won’t get vaccinated.

Employment law expert Jennifer Mills says the answer isn’t clear cut because while an employer can’t fire someone for refusing the vaccine, they also cannot put them at risk at work.

“No employee can be fired or their employment terminated by their refusal to have a vaccine, but what an employer can do is carry out a risk assessment on health and safety grounds and I think that if there is an issue in terms of the provision of safety for employees, the worker, patients for example then in these circumstances, then an employer would be able to justifiably dismiss an employee’s employment because they are not vaccinated,” she told The AM Show on Friday.

Mills said the process would need to be fair and an employee would need to be given notice they are required to have a vaccine, then if the employee didn’t get vaccinated the employer would need to look at redeploying the worker and then after that the employer could consider termination.

But Mills stressed an employer can’t just fire someone for not getting the vaccine. Instead they have to have reason to believe it’s a breach of the Health and Safety at Work Act.

“I know that the Ministry of Business, Innovation and Employment [MBIE] has come out to say an employer can’t fire employees for refusing a vaccination – that technically is right but that is not the full answer.

“Because…an employer cannot put its employees in a high-risk environment under the Health and Safety at Work Act so there could be exposure for an employer in doing so and in certain circumstances an employer could lawfully dismiss an employee.”

Mills said while border workers have already been told they must be vaccinated, there is no order covering aged care workers but in her view that’s a scenario where an employer might be able to argue it’s unsafe for unvaccinated people to be working in that area.

She also said the same laws apply even if people are unable to get vaccinated.

“You’re not able to discriminate under the Human Rights Act and in this scenario you would have to ensure an employer could not discriminate.

“But if that person’s safety is compromised and they are unable to have the vaccine, or for whatever reason they don’t want it, an employer would still be obliged to look at redeployment and at the end of the day, if it is not safe in a role where after a careful risk assessment there is a sufficient concern on health and safety grounds an employer must be able to lawfully terminate.”

Earlier in the month Workplace Relations Minister Michael Wood confirmed vaccination requirements can be written into new employment agreements, but not existing ones unless agreed to.

New Zealand’s medicine regulator Medsafe is urging anyone who is eligible to get the Pfizer vaccine. It has proved to be effective against both the original coronavirus strain SARS-CoV-2 and also the more infectious Delta variant. The vaccine is safe and severe side effects are extremely rare. New Zealand is currently only using Pfizer in its vaccine rollout.