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Wellington, May 20, 2021
\Employers and lawyers are increasingly concerned and unsure about what to do if an employee refuses to receive a Covid-19 vaccination.
Chris Bowden of ‘Employers Assistance,’ a Supporter Group, said that questions about managing unvaccinated workers had been coming thick and fast, with bosses unsure of their legal and other obligations were under Health and Safety Laws.
Policies and practices
“They know that they cannot force medication on people. But where do they stand, what should they say, what policy should be in place,” he said.
Mr Bowden said that many were concerned that they might be liable under Health and Safety Law if they got it wrong.
“It is really due diligence and protection from a Health and Safety point of view because that is where you are going to come a cropper in; if you are exposing customers or clients or other work members,” he said.
A recent survey by ‘Employment Hero,’ an accounting software company found that a third of businesses in New Zealand planned to make vaccination compulsory, despite an official order from the government only applying to MIQ and some border workers.
Obligation towards public safety
Employment Lawyer Bridget Smith said a business had obligations to keep all its staff and the general public safe.
“If they have an employee who declines to be vaccinated, work out whether they can keep their other employees and members of the public safe through other measures such as PPE,” If that cannot be done, there was scope to redeploy or dismiss the worker, but ultimately the law required the decision to be fair and reasonable,” she said.
“Was the employee entitled in those circumstances to say, ‘No, I am not going to get the vaccine’ and were there other ways that the employer could have accommodated that such as PPE or alternative duties and, if not, was the employer justified in terminating?”
She said it was a case of waiting to see the first cases go through the Employment Relations Authority.
Need for Vaccine policy
“And that is where we are all becoming increasingly concerned about the delays in the Authority, because we have already got significant backlog from Covid-19,” Ms Smith said.
She said that all businesses should have a vaccine policy, including whether the employee can take paid leave to get the vaccine.
Ms Bowden said that employers should encourage staff to get the vaccine but, if workers refused, that needed to be handled as a risk assessment.
“If the company deems them to be at threat or creating undue risk, then, they are within their rights to start negotiations to adjust their roles accordingly. Obviously, good faith and consultation and the process to follow there … you cannot go straight to the jugular and sack people but certainly you could justify a changed position,” she said.
RNZ spoke to law firms who were unable to comment on this topic because they were already representing people challenging compulsory vaccines.
Emma Hatton is a Journalist at Radio New Zealand. The above story has been published under a Special Agreement with www.rnz.co.nz
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