COVID conundrums: Can an employer require vaccination?

Wednesday, September 8, 2021

Can an employer lawfully require that a role is only performed by vaccinated staff? Could an unvaccinated staff member have their employment terminated on that basis? This question has been the ‘hot topic’ of the employment law sphere in recent months. Now, the case of GF v New Zealand Customs Service has become the first piece of litigation to substantively address this issue.

The case

GF was employed by New Zealand Customs (Customs) as a Border Protection Officer at a maritime port facility. GF had objections to obtaining the COVID-19 vaccine and refused to do so. In light of the COVID-19 pandemic and government guidance, Customs carried out a comprehensive health and safety risk assessment while consulting with staff. In parallel, the Government issued the COVID-19 Public Health Vaccination Order 2021 (Vaccination Order) which required “front line” border workers to be vaccinated against COVID-19.

Customs believed GF’s role fell under the Vaccination Order. Their health and safety assessment had also concluded that vaccination was required, given the risk of exposure to the virus. As such, Customs decided that the GF’s role (amongst others) could only be occupied by vaccinated individuals. Following lengthy consultation, Customs had determined that GF was unwilling to be vaccinated. It explored changing work arrangements to mitigate exposure risk, and redeployment into a different role. Customs was unable to identify other available roles or reach an agreement. GF was accordingly dismissed her from her role on the day that the Vaccination Order came into effect.

In the Employment Relations Authority, GF challenged both this decision and the process used to reach it. She did so on a number of grounds, most relevantly that there were no health and safety reasons that could justify requiring the role to be vaccinated. Customs, in turn, argued GF’s employment was justifiably ended once the Vaccination Order came into effect, and that prior to the Vaccination Order, they had conducted a thorough health and safety risk assessment and determined on legitimate and reasonable grounds that incumbents in GF’s role were required to be vaccinated.

The Authority agreed with Customs, ruling that its actions ultimately met the standard of a fair and reasonable employer.

Key takeaways

This case serves as a clear statement of the standard that employers will likely need to meet should COVID-19 necessitate a change to the terms and conditions of a role.

  • While the Vaccination Order provided ample justification in this case, the Authority Member made it clear that the courts will not unduly ‘step into the employer’s shoes’ in determining whether changes to a role (like requiring vaccination) are justifiably required. The Authority simply must be satisfied that the decision made was reasonable. In practice, this will mean a thorough and genuine health and safety risk assessment being carried out in consultation with the employee. WorkSafe guidance recommends that employers take into account two factors when conducting a risk assessment:
    • The likelihood of a worker being exposed to COVID-19 while performing the role; and
    • The potential consequences of that exposure on others (for example, community spread).
  • The Authority re-iterated the key tenets of the process which employers must follow, as prescribed by s.103A Employment Relations Act 2000:
    • Sufficient investigation: The employer should explore the reasons that the employee is declining to become vaccinated, while acknowledging their right to refuse under the NZ Bill of Rights Act. In this case GF refused to engage with Customs on this matter, and put Customs in the position that it could not take her views into account.
    • Consultation: The employer should provide all the information it can which is relevant to the decision to make vaccination mandatory for the particular roles. Customs’ comprehensive health and safety risk assessment was carried out with close regard to these legislative obligations. The employee must be given a reasonable opportunity to provide responses to the concerns or proposals, and the employer must carefully consider any responses given.
  • The employer should consider all alternatives before making a decision to dismiss. Options like changing work arrangements or redeployment to lessen health and safety risks need to be fully explored with the employee.

Moving forward

Requiring the incumbents of particular roles to become vaccinated is a complicated issue. There is significant interplay between contractual and statutory obligations, from health and safety considerations to employees’ rights under the NZ Bill of Rights Act and the Human Rights Act.

What is emerging as a key point is that, despite the difficulties which employers face in fast-moving and uncertain environments, employment law obligations do not change. While an employer’s actions will be considered in light of the circumstances at the time, the obligations of consultation, communication and good faith remain.

Finding themselves in unfamiliar territory, Customs closely adhered to their fundamental employment obligations. This ultimately meant that their actions were found to have been justified. The grounds for their decision were very strong, both because GF’s role involved border control, and because the Vaccination Order made vaccinations in those roles mandatory.

However, matters remain unsettled for roles involving less clear-cut health and safety risks, or roles which are not covered by a Vaccination Order. It is likely that further cases will be litigated in the future which will provide further guidance. In any case, employers should keep the fundamental employment obligations at the forefront of the mind when addressing COVID-19 issues.

For more information or specialist advice, please contact a member of our employment team.

 

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.

 

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