News Article

latest news in employment law

COVID-19 No jab, no job

Published 10 Feb 2021

With the long awaited Covid-19 vaccine rollout imminent in NZ, as it becomes widely available it begs the question: can an Employer insist that their staff take it? And if not can they be dismissed?

Employers cannot force medication or medical choices of any sort onto staff. That would be in direct contravention of New Zealand Bill of Rights Act.

The best an employer can do is politely request and maybe offer to fund. Staff can refuse on a number of fronts; personal choice, health, beliefs or religion, and are protected by law against being disadvantaged or discriminated against as a consequence of those choices.

At this stage it's likely that if you terminate or disadvantage an employee on the basis of not getting vaccinated you will end up with a personal grievance to defend.

Potentially referring the matter to the Employment Relations Authority or even Court to decide, they would essentially look at two things:

Justification and Process

  • Is the Employer reasonably justified in taking the action they have?
  • Is the Employee reasonably justified in the action they took?
  • Has there been a fair process followed?
  • Have the parties had full access to all information?
  • Have the parties acted in good faith?
  • Have all the options and alternatives been explored thoroughly?
Justification will have to look at the potential risks faced in the circumstances. Having COVID-19 rife in the community is wholly undesirable from a safety point of view, it directly costs lives. And Health and Safety usually trumps everything else in Employment Law when lives are at stake, so there is potentially reasonable justification for an Employer to require staff to get vaccinated in certain circumstances and industries.

As an example, an accounts clerk working from home would be deemed far less a risk than a health worker engaged in an aged care facility. An employer trying to force a vaccine on the accounts person could be argued unreasonable while the health worker far more easily justified.

Often historical or precedent cases are also referenced in legal decision making. A parallel in Australia recently; the Fair Work commissioner, Ingrid Asbury, upheld an Employer's decision to terminate a childcare center's worker for refusing a flu jab. Stating they had the right and justification to protect the children in their care.

Arvida Group, a large NZ aged care provider, have recently said all new employees would need to consent to vaccination against Covid-19, as well as the flu. Easier to do for new staff, as a condition of employment in this circumstance. Not so easy for existing.

It's a matter of time before most business will have to embrace and deal with a vaccination policy in a similar ilk with drug and alcohol policies which are of course commonplace these days.

An important and often overlooked point with policies is that they should be justified, created and implemented in consultation with staff. Simply rolling out a "No jab, no job" policy will almost definitely get you the personal grievance.