The Covid War Cry Is About To Get Louder As The Government Extends Into The Health And Education Sector.
The government move from an elimination strategy to a vaccination and testing strategy has thrown up more workplace issues. Already the war drums are beating, and workers are mounting workplace protests.
Tensions are becoming high between employees and employers. Not since the 1981 springbok tour has there been such heightened social/community division.
There are two clear divisions. Anti or pro vac which employers and workplaces are having to deal with.
The issue is complex as it intersects employment interests with personal.
It cuts across not only employer/employee relationships but inter worker and third-party person to person contact.
The question however for the workplace is not the freedom of consent to medical treatment but can the person employed to do the work do so without covid-19 risk without being vaccinated.
The vaccination order imposes liabilities on employers who employ people to do work that has been mandated for vaccination. It makes it unlawful to employ someone in a specified job at specified workplaces that have not been vaccinated.
It includes workers belonging to groups of workers who handle certain “affected items” removed from managed isolation aircraft and ships.
The regulatory employment framework involves a mixture of mandated requirements (government mandates) health and safety requirements, privacy, and circumstantial discretion under the employment relations.
Section 3 of the Bill of Rights (BORA) expressly confines the application of the Bill of Rights legislation to the legislative executive and judiciary, or an act of public function power or duty conferred by or pursuant to law.
An employer has a primary legal duty to ensure as is reasonably practicable the workplace is healthy and safe for all employees and those affected at work.
Real risk and harm need to be factored into the equation and managed.
Employees have also a duty to keep themselves and those they work with safe from harm and risk at work. The regulations are a in place to prevent/reduce risk of spread. The boundaries extend to good public order and are not just confined to the workplace.
The superior law and the starting point are the government regulation requiring mandated testing and vaccination in certain industries and work.
These regulations are about to be extended into the health and the education sector and no doubt the ambit of influence will extend even further with time as we learn to live with the delta variant in the community.
But with all legislation the situation is not always black and white. It will depend on how the law is interpreted and the fact and degree of each circumstance. Shades of grey will colour the outcome.
The legislative minefield will invariably give rise to tensions between employers and employees as both sides jostle to extrapolate from the situation. Already we are seeing a plethora of issues for debate as the tensions rise with both employers pushing boundaries and employees pushing back.
This article attempts to address some of the issues that are surfacing. We are yet to see the extent of the intended amendments to the vaccination mandate for work in the health and education sector but expect the rationale for the decisions made will be the prevention and limitation of covid risk based on “affected” work.
What isn’t clearly understood is that the vaccination order doesn’t mandate vaccination. That remains individual choice. No employer ought to bring pressure to bear or influence anyone’s choice.
What the law addresses is that certain named work can only be carried out by a vaccinated person. Therefore, legally a condition of the role/work will be vaccination. An affected person (non-vaccinated) means work that affected person carries out in respect of a group specified in the legislation.
Further the vaccinations order (clause 8) also imposes a duty on persons in control of a business or undertaking (PCBU) not to allow an affected person to carry out work unless satisfied that the affected person is vaccinated. Where a PCBU is not satisfied then a termination process may follow.
There are no exemptions. The requirement is absolute.
So where are the boundaries? What are the obligations and how will they affect employment rights and obligations?
Firstly, there are two distinct categories: those covered by the regulations and those not.
Government employees will have an additional security blanket in the bill of rights (BORA) not open to other employees.
Questions and Answers:
Can an employer compel an employee to be vaccinated?
Short answer no. It is everyone’s right not to take medical treatment they don’t want.
However, that will not mean that an employer cannot terminate an employee who refuses to be vaccinated if there is just cause for doing so; in this case requiring that the person who does the work is vaccinated if that is what the work requires.
Noncompliance with the Health order will constitute just cause:
Recently a customs/border worker was held by the authority to have been justifiably dismissed for refusing to get vaccinated for mandated vaccination work.
Just cause is easy to assess if the work is covered by the covid health orders.
It’s an in or out situation no jab no job if the description of the work included in the health order is clear. If not, then it will be open to conjecture and the circumstances of the situation will prevail.
All decisions made will still be subject to the normal requirements of fair process.
In that process the employer will still be required to act fairly and reasonably in the circumstances and abide by the statutory framework, including Human Rights obligations requiring no discrimination (e.g., on the basis of religion, disability etc.) and explore options such as redeployment.
Remember – it is the work not the person that ought to be the focus of the decisions made.
Opportunities to get rid of unfavorable employees ought to be avoided.
Where an employee is not covered by a Health order:
A different approach is required. This brings into play the obligations both parties to the employment relationship under the Health and Safety at Work Act.
The employer has the primary responsibility to manage health and safety risk either by elimination or minimizing it.
For an employer the obligations are to ensure a safe and healthy workplace.
Employers have a positive duty of care to take reasonably practicable steps to achieve this and to ensure the health and safety of its workers at work. The obligations will be measured against likelihood and potential degree of harm; knowledge of risk and availability of measures available to deal with the risk together with the costs proportionate to the risk.
In the custom workers case, the Employment Relations Authority relied on the fact of risk to others from the unvaccinated worker. The Authority indicated that posing a risk to others could mean risk to continued employment.
Reasonable workplace policies to ensure compliance with the obligations may include a requirement of vaccination where there is identifiable risk of covid spread in the work undertaken. There is however a severe warning to this. The risk will need to be real and justifiable.
Each workplace will have to run its own assessment of risk. It will not just be a fanciful or personal desire. Each role and work tasks will need to be assessed against objective standards. A one size fits all approach will not be work. The nature of the work would have to demonstrably show risk to others in the workplace environment (How to decide what work requires a vaccinated employee | WorkSafe).
Also, see the Health and Safety Association of New Zealand table listing health professionals that might provide specific Covid -19 advice on risk.
In the absence of a health order requiring vaccination to be a mandatory for a role, an employer will need to first conduct a safety assessment (Safety assessment | WorkSafe) and consult with the staff member(s) occupying the role(s) it is seeking to make vaccinations a mandatory for. Further the safety assessment conducted should substantively justify the requirement. Where that safety assessment results in a finding of minor or low-level risk it may be difficult for the employer to justify in the absence of a health order.
Can an employer ask if someone is vaccinated?
Short answer generally no unless there is reasonable and lawful reason for doing so. Yes, such as seeking information as to whether an employee is compliant with the health order or the Health and Safety at Work Act. (i.e., not a risk). The focus on the request should be clearly on the lawful purpose for the request.
The general rules under the privacy act for the collections and a recording of information will apply. Namely the requirement is for lawful purpose and must be directly obtained from the individual and only used for the purpose collected. It must be destroyed when the purpose for the collection no longer exists.
Refusal to comply with a reasonable and lawful instruction may give rise to a justification for termination.
Does the increasing rate of vaccination change the employment circumstances for vaccination?
Possibly it does as the risk factor according to the experts reduces the covid-19 risk so this would flow into the workplace probably and affect the risk assessment?
Does working with the vulnerable or health compromised alter the risk and the right to requirevaccination?
Probably yes if the risk can be objectively assessed against known factors as the requirement is to protect and prevent covid spread which vaccination is identified as reducing transmission.
The authorities have identified that the disease is more likely to more seriously affect the vulnerable and immune compromised which may include Pacifica and Māori.
Evidence of risk doesn’t have to be at a scientific level. Balance of probabilities would suffice. A commonsense approach is called for.
Policies must be clear, fair and reasonable:
Policies must be clear, fair and reasonable. It is important that they have been seen and understood. They also must be clear in expectation and consequences for breach.
It should be expressly explained the reasons for the policy why and the basis for it. The ultimate situation would be to produce a draft and ask for feedback before implementation.
Consultation and fair process will still be required.
Refusal to vaccinate and breach of the policy:
Refusal without a policy will not be justified. It is the breach of the policy that should be the focus. Before taking any drastic step to terminate for breach of the policy, make sure it was clear and explore all options short of termination. These may include alternative work or roles that clearly can be done without risk.
Requirements to vaccinate cannot violate rights or discriminate:
Consideration also ought to be given to extenuating circumstances such as exemptions and medical or human rights conditions e.g., religious belief, ethical belief practice, or disability. An employer can ask for evidence of extenuating circumstances and the risk still is the prevailing consideration.
Medical situation must be taken into account. Pregnancy may also be relevant.
Reasonable options must be viable, not fanciful and may include alternative duties away from exposure or risk, redeployment to another role, reconfiguration to an existing role to reduce exposure or risk (e.g., working in a different location, from home etc.).
Can an employer introduce and mandate covid-19 testing?
The same rules as drug and alcohol will apply for testing in the workplace. There will need to be a sound reasons for it and clarity for the purpose and process.