NO JAB, NO JOB?

With the rollout of the Covid-19 vaccine well underway, the question as to whether employers can require employees to be vaccinated is a hot topic in the news. 

If you are a border or managed isolation worker, the answer is simple – yes, your employer can require that you are vaccinated. Employees in these roles are covered by a government health order making it a legal requirement that this work is performed by vaccinated employees. This order has also recently been extended to high-risk workers in the health and disability sector and school and early learning workers who have contact with children and students. These employees will need to have their first dose of the vaccine by mid-November. 

This new legal requirement has already been tested in the courts. Last month, the Employment Relations Authority held that a border worker who refused the vaccine was justifiability dismissed. The High Court also dismissed an attempt by the same employee to challenge the new law for being too heavy-handed. We expect both decisions to be appealed. 

It is more complicated for workers not covered by the health order. Employers cannot require employees to be vaccinated unless they occupy a “high risk” role. To determine whether a role is high-risk, employers must carry out a risk assessment. This assessment includes considering, for example, the amount of exposure a worker has to others, how easy it is to identify persons the worker has contact with, and whether the worker interacts with persons at risk of severe illness from Covid-19. The higher the risk, the higher likelihood the work should be performed by a vaccinated employee. 

Nonetheless, mandatory vaccination outside of a government order remains risky and is untested by the courts. Employers may prefer to encourage employees to get the vaccine rather than making their role dependent on it. For example, we are seeing staff incentives used to encourage employees. Employers should also consider what other steps they can take to ensure health and safety. 

This remains a developing space, and we await further decisions with anticipation.