There can be no doubt that all employers have a duty to provide conditions of employment that allow people to be, and stay, healthy. However, there is no cut and dried demarcation when it comes to the question of whether an employer can make the COVID-19 vaccine mandatory for its employees. This is a developing area which is complex and involves health and safety, employment, human rights, and ethical considerations.
Health and Safety
Is mandatory vaccination within the meaning of ‘reasonably practicable’ under the Health and Safety at Work Act 2015?
There is no doubt that COVID-19 poses significant risk to human health. In New Zealand, however, the risk of being infected right now is arguably low, making it hard to justify mandatory vaccination. There would need to be much wider and sustained community transmission to justify mandatory workplace vaccination in New Zealand.
It is also relevant that there are other ways to protect against spreading COVID-19 in the workplace, such as more widespread mask wearing, social distancing, and working remotely. Arguably, these minimisation strategies are less preferable to elimination strategies such as mandatory vaccination, especially for industries such as healthcare, travel, and hospitality where the risk of transmission is higher.
While it might be easier for an employer to introduce mandatory vaccination as a requirement for new hires, could an existing employee be justifiably dismissed for refusing to be vaccinated? Perhaps, by arguing that the vaccination is necessary to give all workers the highest level of ‘reasonably practicable’ protection against workplace harm. An employee also has their own obligations to take reasonable care of both their own and others’ health and safety, further strengthening the employer’s case for mandatory vaccinations.
Whether this is a ‘fair and reasonable’ justification depends on a number of factors. First, this is a vaccine developed at speed and with much less testing than is normally required before release to the wider public. There are also alternative approaches to minimise the risk of infection.
An employee might argue that rather than having their employment terminated for refusing to be vaccinated, they should have been redeployed into a role within the business where they were less likely to have come into contact with those who hadn’t been vaccinated. In practice, this is unlikely to be a real alternative. Even redeploying staff to ‘back-office’ roles may not solve the issue, given that there will be persons (including employees of the same business) who have conditions preventing them from being vaccinated and who also need to be redeployed to such roles. Many employers would likely find it challenging in those circumstances to accommodate workers choosing not to be vaccinated. Yet, those workers are also unlikely to be suited to front-line roles where they could themselves infect customers or clients, some of whom may be particularly vulnerable, depending on the industry.
Another important consideration is the impact that COVID-19 can have on an employer’s business. For example, if an employer’s worker(s) contracted COVID-19 and, as a consequence, the business couldn’t operate.
If an employer was to implement a mandatory workplace vaccination policy, certain minimum procedural aspects would be required, including:
- drafting a clear policy expressly stating the requirement to be vaccinated, the acceptable exemptions, and the possible consequences of non-compliance;
- consulting with employees on that policy before introducing it and considering feedback they receive with an open mind;
- clearly informing employees of the policy when it is adopted and allowing enough time for compliance;
- enforcing the policy consistently and fairly; and
- allowing an exemption for employees who have a valid medical reason for being unable to be vaccinated.
Should employers (or the State) use measures to compel vaccination compliance? In considering this ethical issue care is needed in appealing to examples of situations where we already allow coercive measures to serve the public good. A key principle in New Zealand is self-determination. The New Zealand Bill of Rights Act 1990 (NZBORA) enshrines the right to refuse medical treatment (section 11), but this right may be subject to justifiable limitations. Ultimately, employees are simply free to leave their employment if they don’t like the sort of conditions their employer is imposing on them.
However, a right that does restrict employers’ actions, is the right to be free from discrimination. One obviously relevant prohibited ground is disability. However, how this applies exactly is far from straightforward. Could ‘not being vaccinated’ or the consequent vulnerability to COVID-19 constitute a ‘disability’? Could ‘the presence’ of an organism causing illness be read widely to include the absence of an organism? Does a vaccine even amount to an ‘organism capable of causing illness’ (especially if its purpose is to prevent illness)? Regardless, employers may discriminate based on disability if there is an unreasonable risk of an employee infecting others, but only if there are no reasonable measures the employer could take to protect against that risk.
Age and ethnicity could also both arise as relevant prohibited grounds if vaccine distribution was inequitable (even just initially). Religion/belief could arise if employees have religious reasons for refusing the vaccine (this could trigger the fascinating question of whether profound ‘anti-vax’ beliefs could be protected under this ground). Sex/pregnancy could also arise if it is unsafe to be vaccinated while pregnant (though pregnancy is probably a relevant medical reason constituting a valid excuse under the policy).
New Zealand case law has so far only very superficially touched on the topic of mandatory workplace vaccinations. Two District Court decisions in 2008 and 2016 both took it for granted that an employer could not require either a blood test or vaccination for hepatitis B (Department of Labour v Idea Services Ltd DC Hastings CRN08020500068, 4 November 2008; Worksafe New Zealand v Rentokil Initial Ltd  NZDC 21294). In both cases, the risk of infection was primarily to the employee, the previous health and safety legislation applied, and the decision did not delve into the jurisprudence in any particular detail.
Australia is more likely to provide useful case law in the near future. Victoria has made certain vaccinations mandatory for its health workers and could well add the COVID-19 vaccine to that list. And, in mid-2020, a Queensland childcare centre dismissed an employee for refusing to have a mandatory flu vaccination (Arnold v Goodstart Early Learning Ltd  FWC 6083). Unfortunately, the case was filed out of time, so the Fair Work Commission’s decision does not delve deeply into the merits of the mandatory vaccination policy. Deputy President Asbury made only a passing observation that it was certainly arguable that the employer’s mandatory vaccination policy was lawful and reasonable because of the employer’s duty of care towards attending children, including children too young to be vaccinated. While Australia’s legal context obviously differs from New Zealand’s, we should keep an eye out for more cases like this from across the ditch.
Regardless of whether employers can require employees to be vaccinated, the question remains whether they should. There will be people who are more deterred from being vaccinated because it is being required of them, than they would be if they had been offered the vaccine on a voluntary basis. It may be that an employer’s best course of action is to simply make the vaccine available in the workplace and rely on voluntary compliance, as many employers already do with the flu vaccine.
The door isn’t shut to an employer wanting to make the COVID-19 vaccine mandatory for their workplace, but the door isn’t wide open either; especially as rates of community transmission in New Zealand remain low. An employer who gives it a go, must do so knowing that they are likely to be the test case for this, and the cost of that might well outweigh any other benefits.