The COVID-19 vaccination has raised challenging questions about the rights and obligations of employees and employers in the workplace. The vacination rollout is in full swing, with the general population having access in the next few months, it could be a good time to think about your workplace policy on the issue. The following article is written by our supporting partners Hesketh Henry, if you need support on this topic please call the helpline to dicuss further.
Alison Maelzer, Partner
Eloise Callister-Baker, Associate
Under the Health and Safety at Work Act 2015 a person conducting a business or undertaking (PCBU) must ensure, so far as reasonably practicable, the health and safety of workers, and eliminate risks to health and safety. If it is not reasonably practicable to eliminate risks to health and safety, then the PCBU must minimise those risks so far as is reasonably practicable. COVID-19 is a foreseeable risk to health and safety of workers and others in the workplace.
Employers must regularly assess the risks in their workplaces and review the effectiveness of their control measures. When it comes to the risk of contracting or spreading COVID-19 in the workplace, the assessment needs to take into account all the circumstances, on a case by case basis. This is likely to include an assessment of different roles (for example, front of house employees are at a greater risk of contracting and spreading COVID-19 in the workplace), the present risk in the community generally, and the physical workplace itself (for example, a chef in a large establishment that has no contact with front of house employees would likely be less at risk than a chef in a small café).
For most employers in hospitality the risk of spreading COVID-19 can be managed in the same way that it has been managed before the vaccine became available – by employees following the Government-mandated protocols for each alert level. In these workplaces, wearing PPE, hand washing, physical distancing, encouraging (or directing) sick employees to stay home, and running a contactless operation (when required), have proven to be reasonably successful in mitigating this risk so far. If anyone does have cold or flu-like symptoms the Government strongly encourages that person to get tested and stay home until he or she receives a negative test result. There are also a myriad of government benefits available, which we have summarised here.
However, if the employee works on the frontline and/or with vulnerable people then, arguably, one of the ways to eliminate, or certainly significantly reduce the risk of COVID-19 infecting others, is for the employees to be vaccinated. The risk becomes much higher when there is community transmission. For certain workers, including workers at managed quarantine facilities and isolation facilities, the Government has required them not to carry out work or otherwise conduct an activity at a place unless they are vaccinated.
If there is COVID-19 in the community (which can happen suddenly and spread quickly) and an employee has failed or refused to get vaccinated, an employer should proceed carefully before taking any action against an employee that may adversely affect his or her employment. Such action could include dismissal (as a last resort), suspension (depending on the presence and drafting of the suspension clause) warnings, or changing an employee’s duties, workplace, or location of work. As always, how and what action the employer takes will need to stand up to the test of justification, i.e. whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
First and foremost an employer should understand why the employee is refusing or failing to get vaccinated, as he or she may have a good reason for this. For example, the employee may have a medical condition or have certain religious beliefs. This could bring the Human Rights Act 2003 into play, as religious beliefs and medical conditions are prohibited grounds of discrimination.
An employer should explore all alternatives before taking any action against the employee. For example, it might be possible for the employee to wear additional PPE, or do other work when there is community transmission.
First and foremost an employer should understand why the employee is refusing or failing to get vaccinated, as he or she may have a good reason for this.
The lawfulness of the employer’s actions will be assessed in light of all the circumstances at the time the employer takes the action. This will include, at a minimum: an assessment of the actual risk, at that time, of infection/transmission, the potential consequences of infection/transmission, the various means available for reducing the risk of infection/transmission in those particular circumstances and the efficacy of those alternative means, the employee’s reasons for failing or refusing to have the vaccination, and any relevant contractual provisions.
In many ways, the issues related to COVID-19 vaccinations in the workplace are similar to those in relation to drug testing employees, particularly those employees who work in safety sensitive roles. How an employer approaches these issues may help it in its considerations of approaching potential issues about the COVID-19 vaccination. For instance, it is likely to be reasonable to drug test an employee who is working in a safety sensitive area. It is less likely – although not impossible – to be considered reasonable to drug test an employee who is working in an office. The area the employee works in and the associated risks will also be relevant in the context of COVID-19 vaccinations.
If an employee refuses to be drug tested, as with an employee refusing to get the COVID-19 vaccination, then an employer will need to investigate this before taking any action. If the employee does not have good cause, this may result in the employer taking disciplinary action against the employee.
As employers should do for drug testing, we also suggest that a comprehensive clause in the employment agreement and policies about the COVID-19 vaccination will give employers stronger footing in these circumstances. A vaccination policy or clause should set out when, how, who, costs, information, etc. Remember that existing employment agreements can only be varied by agreement. If you wish to introduce a policy you will need to check your employment agreements to make sure it doesn’t contradict any agreed terms in these and consult with employees before implementing. Case law relating to drug testing employees indicates the greater the policy’s impact on the employee, the more thorough the consultation will need to be. The Restaurant Association has excellent resources in this regard, including a template vaccination policy.
While we have not seen these fact scenarios tested in the Authority or Court, we consider it will only be in very limited circumstances that an employer could take justifiable disciplinary action against an employee who refuses to get vaccinated. This means, in most workplaces, the best approach will be one where an employer encourages employees to get the vaccination and provides them with access to information and support. Should an employer sense any reluctance from an employee, again, it is better to talk through this with an employee. If an employer can make it easy and positive for employees, then employees are much more likely to agree to the vaccination.
This means, in most workplaces, the best approach will be one where an employer encourages employees to get the vaccination and provides them with access to information and support
As the COVID-19 vaccination and its related issues is uncharted territory for employers, we strongly suggest employers seek advice if an issue arises in this area.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.