Can you Require or Encourage an Employee to take the Covid-19 Vaccine?

Recently there have been a number of announcements by large employers overseas making the Covid-19 vaccine mandatory for customers and or employees. However, in New Zealand the Ministry of Health has confirmed that it will not be making the Covid-19 vaccination mandatory for New Zealanders. Given the current climate, employers in New Zealand are considering their options, including whether to make the vaccination mandatory in the workplace or even if they can encourage their employees to have the vaccine.

Under the Health and Safety at Work Act 2015 employers have a duty to protect workers from risks to their health and safety, and workers (including employees and contractors) have a duty to take reasonable care to keep themselves healthy and safe, and take reasonable care that they do not adversely affect the health and safety of others. The question is whether those workers who are not vaccinated are creating a health and safety risk at work. Given community transmission in New Zealand has to date been low, it may be difficult to argue that workers who do not have the vaccine are creating a health and safety issue for others, unless those workers are working with a vulnerable population or are working on the front line.

This is a topic that is fiercely debated, people feel strongly no matter which side of the fence they sit on. While there are clear benefits to having everyone in the workplace vaccinated, the subject is polarising and there are many legitimate objections and complex legal, ethical and moral matters to consider.

These questions give rise to a number of important considerations below:

• Can employers require employees to receive the vaccination? The New Zealand Bill of Rights Act 1990 ("Act") clearly states that everyone has the right to refuse medical treatment.

• How can employers make vaccinations mandatory for the workplace? For example, can this be done by simply updating company health and safety policies, or would individual employment agreements also need to be varied, thereby requiring consultation with employees?  

• Is an employer under an obligation to ensure employees get the vaccine, particularly vulnerable employees?

• What if some employees are not able to be vaccinated due to underlying medical conditions? In these circumstances an employer may need to consider how to treat these individuals, will they need to instead wear a mask, or will they be exempt?

• If the vaccination is mandatory or required for the individual to keep their job, could an employee argue that the vaccination is being implemented under duress?

• Is there an obligation on the employer to segregate those employees who have had the vaccine from those employees who have not?

• If some employees are not vaccinated, can they be forced to work from home, or could that result in those employees (or others) feeling disadvantaged by what may be perceived as a ‘perk’?

• Can an employer offer incentives to employees to have the vaccine, such as a monetary incentive or additional leave?

• Do employees have a right to know if their colleagues are vaccinated? Do employers even have a right to know?

• What if the vaccination is contrary to an employee's religious or ethical beliefs? The Human Rights Act 1993 prohibits discrimination on specified grounds including religious or ethical beliefs. Mandatory vaccination could undermine protected rights to religious or ethical beliefs.

What are the options?

There is no easy answer.

While weighing up the options, employers need to assess a number of factors, such as the nature of the business, the level of risk in the workplace and the competing interests of employees.

It may make sense to require mandatory vaccination for those on the front line such as aged care workers, managed isolation and quarantine staff and airport staff. However, it is likely to be difficult to make vaccination mandatory for an office worker who has no contact with vulnerable people or those likely to have been exposed to Covid-19.

If after weighing up all of the above (and in particular if there is a real health and safety risk), an employer considers that mandatory vaccination is necessary, any introduction of a vaccination policy should be done in consultation with employees, where they have an opportunity to provide feedback on the policy before implementation.

For new employees an employer could consider including an appropriate clause in employment agreements, such as outlining the company policy or, where necessary, making it clear that the offer of employment is contingent on vaccination. Alternatively, and likely the most popular option, will be for employers to strongly encourage employees to be vaccinated.

Please direct any enquiries to:

Melissa Johnston (Partner) in the Employment Team on (09) 306 6729 (mjohnston@mcveaghfleming.co.nz)

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