Recognising the critical role that our border workforce play in keeping us safe, you will have seen that the government has announced that the Ministry of Health will be rolling out the COVID-19 vaccine to border workers and their families from this weekend. The question that some (border workforce) employers are pondering – understandably – is whether they can and should direct workers to get vaccinated. Related to this, what’s the risk of a worker who is not vaccinated doing their job? Could there be valid exceptions to any such direction based on a worker’s individual circumstances?
These are going to be fair questions for many (non-border) employers as the vaccine is more widely rolled out in, we understand, the second half of 2021. The suggestion has been made that government may intervene on the issue, but it could take the view that our laws already provide for this conundrum (they do) and that the determinative factors will be drawn from the circumstances of the particular work and workplace in each case. It’s a vexed question because the importance of operating as safely as possible in the current COVID-19 environment is obvious, but at the same time employees have a number of individual statutory rights (including the right not to be discriminated against nor unjustifiably dismissed) which the courts (rightly) recognise as fundamental “stand-alone” protections.
We discuss below the relevant considerations for an employer in balancing these potentially competing interests.
Health and safety
Our initial view is that there will be some workplaces which, by their very nature, support an employer directing staff to be vaccinated so they can safely and responsibly perform their roles. Frontline aged care is an obvious example. Generally, under the Health and Safety at Work Act 2015, an employer has to take “all practicable steps” to ensure that it provides and maintains a safe and healthy workplace for its staff and customers. In some workplaces, where the consequences of transmission of COVID-19 are especially grave, it might be that an employer’s insistence (within reason, and more on this below) that staff get vaccinated is both reasonable and necessary to discharge the employer’s wider duties to staff and customers.
But what are, or would be, the flow on effects of such a direction? What do you as an employer need to consider?
Human Rights Act
If an employer was to direct staff to be vaccinated, then it has to comply with the provisions of the Human Rights Act 1993. It is unlawful to refuse to employ or to afford less favourable conditions by reason of any of the prohibited grounds of discrimination. In the present scenario, it is conceivable that an employee could refuse to be vaccinated based on a religious belief or due to a disability – two of the prohibited grounds of discrimination. A disability includes a “medical illness.”
Duty to accommodate
Where a religious or ethical belief “requires” its adherents to follow a particular practice, the employer has to “accommodate” the practice so long as the accommodation does not “unreasonably disrupt the employer’s activities.”
The duty to accommodate is engaged once the employer has actual or constructive notice of the practice. The employer then has to give “good faith” consideration to what accommodation it could make. In a recent case, it was suggested that the employer must make a “significant, serious and sincere” effort to accommodate the employee.
A potentially tricky aspect to the duty to accommodate is that it is only triggered where the religious or ethical belief requires the employee to follow a particular practice. If this is unclear, this would need to be (sensitively) discussed with the employee to determine whether the practice is actually engaged in the circumstances.
As to the meaning of the “unreasonable disruption” qualification, this will depend on the nature of the particular workplace, cost and the degree to which safety issues are in play. For instance, there have been cases which have held that the requirements of safety (for example wearing of a hard hat, insisting on tight fit between safety masks and faces, and prohibiting long hair, loose clothing or jewellery near moving machinery) have trumped employees’ individual circumstances. It is also the case that, while an employer has to accept that an accommodation will require some degree of adjustment to an employer’s activities and even disrupt those activities, any accommodation is not necessarily a one-way street. Where an employer makes a reasonable proposal to accommodate, it is incumbent on the employee to engage in good faith.
A similar approach applies to the consideration of whether a medical condition can override a reasonable direction to get a vaccination. The test is whether the employer can, without unreasonable disruption, accommodate the employee by taking reasonable measures to reduce the risk to a “normal level.” The duty would be on the employer to investigate what reasonable measures it could take, and to engage with the employee about the results of that enquiry. Reasonable measures might include making adjustments to the particular workplace, allocating some of the employee’s duties to another employee, transferring the employee to another role or allowing time for rehabilitation, assessment or treatment. Often the question will be whether the cost of accommodating the employee is reasonable. In a recent case, the Employment Court commented that requiring non-discriminatory behaviour “has a price” and that, in part, this price is economic, involving adjustments by the employer to accommodate the needs of the particular employee, unless otherwise excused or exempted.
Duty to maintain employment
If an employee raised an objection to a mandatory vaccination and, applying these tests, the employer could not reasonably accommodate the employee, then our view is that the employer would still have a duty to try to maintain the employee’s employment, for instance by transferring the employee to another position and/or retraining them.
Only after all efforts have been made to maintain/redeploy the employee, could the employer consider bringing the relationship to an end. And if it did reach that point, it would need to follow a fair process and provide the employee with a proper opportunity to be heard (with legal representation) before any adverse decision was made.
It’s a good idea to reach out to our employment team for advice if you’re grappling with what’s the right stance for your business to take as the vaccines become available. And also to consider whether for new recruits, you want to make this a pre-condition of employment.
Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose