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COVID-19 vaccination – can you make it mandatory on health and safety grounds?

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Anthony Harper

Organisations have well-known obligations under the Health and Safety at Work Act 2015 (HSWA) to ensure, so far as reasonably practicable, the health and safety of workers. With public access to the COVID-19 vaccine expected within the coming months, does this mean you can require workers to get vaccinated on health and safety grounds? 

An inevitable (but not necessarily novel) issue

The start of the global roll out of COVID-19 vaccinations has naturally seen employers and individual workers wanting to understand whether or not businesses can require staff to be vaccinated, and what happens if individuals refuse. These issues, while inevitable in the current climate, are not unique.

Employers across a range of professions and sectors (especially health related ones) have had to navigate the difficulties associated with vaccination programmes long before COVID-19 became an issue. This has been necessary to manage the risks posed by diseases and viruses such as hepatitis and influenza, and this shows there is at least some precedent for requiring vaccination as a means to manage health risks in the workplace.

In New Zealand, the Ministry of Health’s vaccine roll-out plan is underway, and access to the vaccine for the general public is expected in the second half of 2021. Already, a Massey University study has found that around one in four people are not intending to get the vaccine. In these circumstances, are policies like “no jab, no job” justifiable?

Managing health and safety through vaccination?

COVID-19 poses a risk to both the health of workers in workplaces and to others that may come into contact with those workers or workplaces. Employers, as “persons conducting a business or undertaking” (PCBU), have obligations under the HSWA to manage these risks to ensure the health and safety of workers and others. A workplace vaccination programme is one of the means available to a PCBU to mitigate against the risks of COVID-19, but does that mean a PCBU can or should mandate this?

Section 45 of the HSWA arguably provides an avenue for a PCBU to require workers to get vaccinated. This provision requires workers to comply with reasonable instructions from the PCBU that allow compliance with the law, and to cooperate with any reasonable policy and procedure of the PCBU relating to health and safety at the workplace. The critical question is therefore whether having a policy of mandatory vaccination and requiring workers to be vaccinated is reasonable.

While COVID-19 does pose a serious threat to human life and health, current levels of community transmission in New Zealand mean the risk of infection is low, making it hard to justify the reasonableness of a mandatory vaccination policy in most workplaces. However, in circumstances where employees interact with people with an elevated risk of infection or have contact with vulnerable persons, a mandatory vaccination policy is more likely to be reasonable.  The analysis will be very context specific. The circumstances of individual workers are also relevant, as it may not be reasonable to require the vaccination of employees with allergies or religious convictions.

This is very much a moving feast, and what is reasonable will change as circumstances change. For example, what is or isn’t reasonable now may need to be reassessed when New Zealand’s international borders are opened and free travel is permitted, or in the event of a significant community outbreak.

Not just a health and safety issue

The question of whether (or not) mandatory vaccination policies are legitimate cannot be determined by reference to health and safety law alone. To the contrary, there are important employment and human rights issues that need to be considered too.

Employment law

Existing employees cannot have new employment conditions imposed on them by their employer without consultation and agreement. This creates a significant hurdle for employers to overcome if employees are not willing to be vaccinated voluntarily.

Employers may need to look to viable alternatives, including a socially distanced work space, a lower risk role, working from home or the wearing of extra PPE. Dismissing an employee for refusing to be vaccinated would be a brave decision and turn on the question of what was reasonable in the circumstances. We recommend not doing this without first getting careful legal advice.

Implementing a mandatory vaccination policy on prospective new employees is easier. An employer can offer terms of engagement which primarily suits its needs, so can therefore require vaccination as a condition of employment for new employees.  This is, of course,  subject to ensuring there is no resulting discrimination (e.g. on religious or other grounds) under the Human Rights Act 1993.

New Zealand Bill of Rights Act 1990

The right to refuse medical treatment and the right to be free from discrimination are two rights which could potentially be contravened by a mandatory vaccination policy.

Vaccination is medical treatment, so under section 11 of the NZBORA informed consent is required from the employee.

As importantly, section 19 of the NZBORA allows employees to be free from discrimination.  This could manifest in numerous ways in this context, for example religion, ethnicity, age, or disability.

Both of these rights, are subject to justifiable limits, as are all the rights in the NZBORA.  Once again, the question of what is reasonable will dominate the analysis of a mandatory vaccination policy in a workplace.

Current position in New Zealand

The Ministry of Business, Innovation and Employment (MBIE) has recently released guidance to assist New Zealand employers to navigate the issues associated with COVID-19 vaccination.

MBIE makes clear its view that employers cannot require an individual to be vaccinated. Instead, MBIE recommends that employers adopt a collaborative approach and actively engage with, encourage, and support employees to get vaccinated. Suggested ways to achieve this include:

  • Facilitating on-site vaccinations or allowing paid time off work for employees to obtain vaccinations.
  • Providing workers with appropriate information about the vaccination and its benefits.
  • Constructively engaging with workers and unions as soon as they can, all discussions being held in good faith.
  • Collaborating with workers and other representatives on any risk assessments or necessary changes in work arrangements.

Ultimately, deciding whether to require employees to get the COVID-19 vaccine is by no means a straightforward question, or without risk of legal action. The answer will change over time and with context.

For now, as a matter of policy, we suggest employers should not assume they can require employees to be vaccinated, and instead should collaborate with their employees to ensure the an effective and fair solution is reached to any issue that does arise.

If you want to understand how your business might be impacted by vaccination issues, please contact our team of health and safety and employment law experts who would be happy to assist.

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