The Government’s recent decision to amend the COVID-19 Public Health Response (Vaccinations) Order 2021 (“Order”) to require fully vaccinated workers in the health and disability, and education sectors demonstrates that vaccine mandates will be an effective tool to help manage and eliminate health and safety risks arising from the Delta variant in the workplace.
Despite the Order, many employers still remain responsible for determining their own vaccine mandates. The emergence of the Delta variant, the stubbornness of the recent community outbreak and the Government’s shift away from its elimination strategy has meant that employers are increasingly considering whether it is necessary to have their own vaccine mandates.
In this article, we outline the steps that employers ought to consider when considering mandatory vaccinations in the workplace and recent decisions involving the dismissal of unvaccinated workers whose work falls within the Order.
Health and safety risk assessment
The Health and Safety at Work Act 2015 (“HSWA”) imposes on PCBUs the primary duty to ensure, as far as reasonably practicable, the health and safety of its workers. This duty extends to the risks arising from the Delta variant, and employers ought to consider whether their HSWA duties require a vaccination mandate in the workplace or for more specific roles to be performed by vaccinated workers.
Employers ought to consider the following key matters when considering mandatory vaccinations:
- The likelihood of the workers being exposed to COVID-19 while performing a role;
- The potential consequences or harm arising from COVID-19; and
- Identifying and assessing any further COVID-19 control mechanisms that could be put in place to reduce the risks.
Given the Delta variant is far more transmissible and serious than the Alpha variant, the risk profile for employers has, in our view, significantly changed. There is now a greater health risk to employees if they are exposed to the virus. This risk will only increase as employees return to the workplace and inter-regional travel recommences.
As part of the risk assessment process, employers have a duty to engage and consult with affected workers (and their union representative(s), if applicable). Employers also ought to consider how to best to support workers during the vaccination decision-making process. This may take the form of information sessions, infographics or removing vaccinations barriers e.g., allowing time off for employees to receive their vaccinations.
Other control mechanisms in controlling COVID-19
Employers cannot solely rely on vaccinations as the only mechanism to help manage the risks associated with COVID-19 in the workplace. Messaging from public health experts is that while vaccination remains a strong and effective tool to protect against the risks posed by COVID-19, it should not be the only tool used.
Vaccinated workers can still contract and transmit COVID-19. Businesses, therefore, ought to address other safety precautions and protocols, such as wearing face coverings, physical distancing and working from home to limit COVID-19 risks. However, the ability to implement other COVID-19 mechanisms by itself does not render a managerial decision to mandate vaccination unreasonable or unlawful. Requiring employees to physically distance and wear face coverings is unlikely to be fully effective for office workers or any other workers who work in confined spaces for long periods of time, particularly where ventilation is inadequate for reducing transmission via airborne particles.
Further, the HSWA imposes on employers a duty to take reasonably practicable steps to eliminate or minimise risks. This threshold of reasonableness requires the consideration of a range of factors, including personal circumstances of employees. While employers could impose the requirement on employees to work from home or work split shifts, this is unlikely a realistic permanent business solution and could cause division in the workforce.
In our view, employers will have a strong argument for enforcing mandatory vaccinations as part of their health and safety response as the emergence of the Delta variant has significantly reduced the efficacy of other control mechanisms.
Mandatory vaccinations and recent decisions
If an employer determines, following its health and safety risk assessment, that it is necessary to impose a vaccine mandate, that employer must still meet their employment law obligations. We turn to some recent decisions where unvaccinated employee(s) were dismissed. The cases involve employees whose roles were covered by the Government’s Order.
The Authority’s determination in GF v New Zealand Customs Service confirms the rights of employers in dismissing unvaccinated employees whose roles are covered by the Order and how employers should consult with employees.
Here, Customs successfully argued that their health and safety assessment identified that the applicant’s role required a vaccinated worker for it to be performed safely. In the alternative, Customs argued that as an “affected person” under the Order, there was a legitimate requirement for Customs’ workers to be vaccinated to continue their employment.
In upholding the dismissal as justified, the Authority found that Customs was correct to disagree with the applicant’s submission that their refusal to get vaccinated did not impact any other person in the workplace. The Authority determined that the HSWA required the applicant to take reasonable care to ensure their actions or omissions did not adversely affect the health and safety of other workers.
Customs clearly communicated their expectations of the role to the employee, the implications of the employee’s refusal to be vaccinated and the alternatives to dismissal which included redeployment.
In WXN v Auckland International Airport Ltd and VMR v Civil Aviation Authority, the Employment Relations Authority, in two separate determinations, declined to grant interim reinstatement for unvaccinated workers in roles covered by the Order. In both cases, Auckland International Airport (“AIA”) and Civil Aviation Authority (“CAA”) successfully argued that the reinstatement of unvaccinated workers would put both employees in breach of the duty to take reasonable care of the health and safety of others as required in HSWA.
While the Authority declined to grant an interim reinstatement in both instances it was held that there was a seriously arguable case for a personal grievance. In WXN, AIA’s decision to direct WXN to remain away from work fell outside the scope of the Order, and therefore, it was seriously arguable AIA did not follow a fair process in suspending WXN. In VMR, the Authority held that it was seriously arguable that CAA did not adequately consider alternatives to dismissal, in particular, modifying the role so that the workers were not covered by the Order.
These cases highlight that employers must still deal with their employees in good faith and ensure that their processes and actions are justifiable prior to taking any adverse action even for workers covered by the Order. We wrote about these obligations in our previous article here.
Comment
While we have not seen a directly applicable judgment at the time of writing this article, we consider that the above decisions support an employer’s right to require vaccinated workers in certain roles where a robust health and safety risk assessment has been conducted. The Government has signalled that COVID-19 vaccinations will become a key tool in managing COVID-19 risks, as the Delta variant’s increased transmissibility reduces the effectiveness of other control mechanisms.
Outside of health and safety, employers ought to consider whether unvaccinated workers will have the ability to perform all duties of their role. The Government has signalled that from the end of November 2021, people will require a vaccination certificate to attend large scale events, and may require them to visit other venues such as hospitality premises. Therefore, those in public-facing roles which require workers to meet clients face-to-face in hospitality venues or attend public events such as conferences or seminars may require a vaccination certificate to perform their role. Air New Zealand’s recent announcement requiring international travellers to be fully vaccinated, means that those employees whose roles require international travel will need to be fully vaccinated.
These considerations suggest that the issues surrounding vaccine mandates in the workplace will only become more topical in the coming months. Please contact us if you require further advice regarding your own workplace health and safety risk assessment or if have any other COVID-19 employment-related questions.
