The courts in New Zealand have not confronted this difficult issue, and it is not clear precisely how the courts would assess and balance the relevant competing rights and interests.  In this article, we outline the competing interests and the applicable legal principles which need to be considered.

 

Background

First, we note that the COVID-19 Public Health Response (Vaccinations) Order 2021 (“Order”) requires certain workers in certain workplaces to be vaccinated, in order to continue performing their work.  Specifically, under the Order:

  • an “affected person” must not carry out certain work unless they are vaccinated; and
  • the relevant PCBU must not allow an “affected person” to carry out certain work,unless it is satisfied that the “affected person” is vaccinated.

This Order applies to:

  • workers at managed quarantine facilities and managed isolation facilities;
  • certain workers at airports and seaports;
  • aircrew members, and workers at accommodation services where the aircrew members are self-isolating; and
  • workers who handle “affected items” (which include items removed for cleaning, disposal, or reuse from a managed quarantine facility, managed isolation facility, an affected ship, or a passenger area of an affected aircraft).

Although the Order requires certain workers in certain workplaces to be vaccinated, it does not prescribe or specify what happens if a worker refuses or fails to be vaccinated.  That has been left entirely to each individual employer to manage, in accordance with our employment laws.

In respect of all other workers (who are not covered by the Order), it is noted that there are no specific laws which prescribe whether and when it would be lawful and reasonable to require workers to be vaccinated.  Rather, employers in New Zealand are required to comply with the Employment Relations Act 2000 (“ERA”) and the general obligations under the Health and Safety at Work Act 2015 (“HSWA”).

 

Right to refuse vaccinations

Although the New Zealand Bill of Rights Act is not directly applicable when managing employment relationships, the fundamental rights contained within the Bill of Rights Act can be influential on the Employment Relations Authority and Employment Court in determining “what a fair and reasonable employer could have done in all the circumstances” under the ERA.

An appropriate starting point is section 11 of the Bill of Rights Act which states that:

“Everyone has the right to refuse to undergo any medical treatment.”

Although the Bill of Rights has limited application to an employer’s decision, our common law has long accepted that the consent of a patient was a fundamental prerequisite to any medical treatment.  In other words, common law recognises the rights and interests to privacy and bodily integrity.  It is also well-established that the performance of a medical operation on a person without consent is unlawful, as it would constitute the criminal offence of battery and the tort of trespass to the person.

 

Justification under the ERA

Employers cannot force or compel any employee to be vaccinated against their will.  However, in an employment context, the issue is not whether an employee is subjected to involuntary medical treatment, despite their lawful right to refuse.  Rather, the issue is whether an employer has good cause to justify its actions (including dismissal) when an employee has not received a vaccination.

Under the ERA, the onus is on the employer to establish that its actions and how it acted “were what a fair and reasonable employer could have done in all the circumstances at the time”.

In our view, an employee cannot successfully argue that a fair and reasonable employer could not in any circumstances take adverse actions (including dismissal) against an employee who is not vaccinated.  When taken to its logical end, such an argument would require the courts to uphold an individual’s right to refuse medical treatment, even if the exercise of that right could detrimentally affect the rights or interests of other people.

It is trite that no right can be absolute, and that each right must be balanced against other competing rights and interests.  We will turn to outline the legal duties that apply to an employer and how they may influence the issue of justification under the ERA.

 

Health and Safety at Work Act 2015 (“HSWA”)

Section 36 of the HSWA sets out the primary duty of care for all employers.  A PCBU must ensure, so far as is reasonably practicable:

  • the health and safety of all workers, while they are at work; and
  • that the health and safety of other persons is not put at risk from work carried out as part of conducting the business.

In practice that means, an employer bears the responsibility for the health and safety of its workers, as well as other people who could be put at risk.  By way of example, an employer’s duty of care under the HSWA could extend to the residents at an aged care facility, the students at an educational facility and the prisoners at a correctional facility.

To fulfil the primary duty of care under the HSWA, all PCBUs are required to eliminate risks to health and safety and to minimise those risks so far as is reasonably practicable, if it is not reasonably practicable to eliminate them.  The duties imposed on employers under the HSWA also come with corresponding obligations on the workers.  In particular, workers must:

  • take reasonable care for their own health and safety;
  • take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons;
  • comply with any reasonable instruction given by the PCBU to comply with the HSWA; and
  • cooperate with any reasonable policy or procedure of the PCBU relating to health or safety.

 

Consideration

Employers have a legal duty under the HSWA to keep workers and other people safe.  To that end, employers are obliged to take steps to minimise the risks and the degree of harm arising from those risks.  In the context of COVID-19, employers need to take reasonably practicable steps to eliminate or minimise the exposure to and transmission of COVID-19.  Likewise, workers must also comply with any lawful and reasonable instructions given by the PCBU to comply with the HSWA.

In some workplaces, the risk of being exposed to and transmitting COVID-19 can be adequately managed in the same way that it has been managed before the vaccine became available – by following the appropriate public health advice and guidance during each Alert Level.  This includes the use of PPE, handwashing, physical distancing, encouraging (or directing) sick employees to stay home, and working from home when required.

That said, the duty to take reasonably practicable steps requires the PCBUs to consider all practicable ways of eliminating or minimising the risk.  Vaccination is a practicable way to lessen the risks of and the potential harm from contracting COVID-19, as it stimulates the body’s immune system to produce antibodies and other proteins that fight the virus if the person is exposed to it.

In our view, some employers may determine that certain work or roles must only be performed by vaccinated workers, following a proper risk assessment.  This may arise where there is a reasonably high level of risk of contracting COVID-19 or transmitting COVID-19 to others, or where there are heightened potential consequences of being infected by COVID-19.

 

Risk assessment

To determine whether there is a heightened risk in certain work / role, PCBUs need to consider and assess the risk of exposure to COVID-19 and the potential consequences.  This includes considering the degree of potential harm which may be suffered by workers as well as other people who could be put at risk.  The risk assessment ought to apply to the work done by all workers (including employees and independent contractors).

A proper risk assessment generally includes two broad considerations: the likelihood of the workers being exposed to a risk while performing a role, and the potential consequences arising from the risk.  Under the HSWA, employers must engage and consult with the affected workers (and their union representative, if applicable) during the risk assessment process, and when deciding how to eliminate or minimise the risks.

 

Taking actions

Employers must act in accordance with the ERA where it has determined that certain work or roles need to be carried out by vaccinated workers, following a proper risk assessment and adequate consultation with the affected workers.  That means, an employer must deal with its employees in good faith and ensure that its process and actions are justifiable under the ERA.

We note that the public discourse tends to focus on whether employees can be dismissed for failing or refusing to be vaccinated.  However, it is more accurate to consider whether an employer may take adverse actions against an employee, with dismissal being a last resort, where it has identified that the employee is not able to carry out certain work / role safely without being vaccinated, following a proper risk assessment.

In practice, it means that employees need to be explicitly warned (preferably in writing) and given a reasonable opportunity to reconsider and to obtain the vaccination, knowing the potential consequences of failing to do so.  Further, employers must engage constructively with the affected employees to maintain the employment relationship and attempt to redeploy or reassign an existing employee to an alternative role, position or location of work, which does not require a vaccinated person to carry out the work.

In the event of a personal grievance claim by the employee, the onus will be on the employer to show that it has acted fairly and reasonably, both substantively and procedurally, in all the circumstances at the time.

In addition, although it is beyond the scope of this article, we note that employers have an obligation under the Human Rights Act to make reasonable efforts to accommodate the employee’s decision not to vaccinate, if this is because of a religious belief or a disability / medical condition.  This would require employers to search for ways to accommodate the employee.

 

Conclusion

There is a significant degree of uncertainty.  Until the Employment Court directly confronts this difficult issue, it is not clear how the relevant competing rights and interests would be assessed and balanced.  That uncertainty will cause most employers to take a conservative approach.

However, some employers cannot wait for people to be harmed before they take firm actions.  By way of example, the aged care sector will be acutely aware of the risk of fatalities caused by the transmission of COVID-19.  To our knowledge, twelve people from the Rosewood rest home cluster died after contracting COVID-19.  The death toll from the Rosewood rest home and St Margaret’s rest home outbreaks accounted for 15 of the COVID-19 related deaths in 2020.  When faced with potential fatalities, the issue of workplace vaccination is just not an academic debate.  It has real potential consequences and a real ability to make a difference in the health and safety of people.

We consider that an employer may take adverse actions against an employee, including dismissal as a last resort, where it has identified that the employee is not able to carry out certain work / role safely without being vaccinated, following a proper risk assessment.  However, there is considerable ambiguity in terms of where the line should be drawn.  Further, it can also be argued that Parliament is in a much better position to undertake the necessary risk assessment, and that courts are not the appropriate forum to weigh up competing scientific and social considerations.

Please contact us should you have any specific questions in relation to your situation.