No Jab – No Job, will this be legal?
As a result of the recent Alert Level 4 Lockdown the Government has increased the focus on vaccinating the population as a means to addressing the wider spread of the Covid-19 Virus within New Zealand. With vaccination rates now increasing this has raised the question as to whether an employer can require their staff to be vaccinated, and whether a “no jab-no job” approach can be adopted.
Within our June Article we addressed the questions of
- Can the employer require employees to have the vaccination injection?
- Can an employee be terminated for refusing to have the vaccination?
- Can having a Covid-19 vaccination be a valid pre-requisite for employment of new staff?
Please follow this link to re-read that article.
Since June, further information has emerged on this topic which has enabled us to develop our thoughts on this further.
Primary to this is a recent case from the Employment Relations Authority which found that The NZ Customs Service was justified in terminating the employment of a Border Worker who refused to get a Covid-19 vaccine. Within its defence of the Unjustified Dismissal claim, Customs demonstrated to the ERA how it had conducted a thorough heath and safety risk assessment to determine that it required its front-line staff to be vaccinated as they carried a high risk of coming into contact with the virus. Customs also reinforced how they had offered to redeploy the worker to another role and that it was only when redeployment was deemed not to be feasible, did they move to terminate the workers employment. Customs also reinforced how they had provided staff with numerous opportunities to work through any concerns that they had regarding being vaccinated.
Although NZ Customs were also subject to additional provisions related to border protection, in addition to the General Public Health Order, the key principles of their approach still apply. These being:
- An organisations stance on staff vaccination requirements will need to take into consideration varying alert level impacts on the business’s operations.
- The requirements may need to be ‘role-focused’ rather than blanket rules affecting all staff.
- The organisation will need to complete a health and safety risk assessment.
- The organisation will need to provide some form of educative information to its workforce.
- Options for redeployment will need to be considered.
In an August article, Minister of Labour Michael Wood, told the Education and Workforce Select Committee that he rejected introducing mandatory worker vaccination requirements with the current laws being enough of a safeguard to protect employees. Wood however also reinforced that while an employer may not be able to insist that their workers are vaccinated, he accepted that some employers may elect to make having a vaccination as a requirement of a job offer to a new employee.
As a result of these further developments, we have now received many enquiries from employers who wish to implement relevant clauses within their employment offer documentation as well as introducing vaccination policies within their company’s HR procedures.
For current Covid-19 Policies please see our policies page on our website
If you wish to discuss how these can be implemented within your business, please contact us directly.