Can you be forced to take the vaccine?
Discussions about the ‘greater good’ are usually hypothetical, or left to Hollywood movies. When it comes to COVID-19 and the vaccine, we are seeing the limits of employment law being tested in real-time.
As part of the government’s COVID-19 vaccine roll-out, workers at our border, isolation and quarantine facilities are being prioritised. Once that phase is completed, the focus will shift to our elderly, before the wider New Zealand population has the option of getting vaccinated.
As of the end of March 2021, more than 80 percent of New Zealand’s isolation and quarantine workers have received at least one dose of the Pfizer/BioNTech vaccine. So far, 28 have refused.
Can an employer force you to take the vaccine?
Short answer, no. An employer can not force an employee to take the vaccine. But, it does pose some complicated questions.
“Every person has the right to refuse medical treatment under the New Zealand Bill of Rights Act 1990, and cannot be compelled to do so by the Government. But the case is a little more unclear as between an Employer and Employee. The short point is that an employer can’t force an employee to get vaccinated. Also the Government has passed legislation under emergency to mandate vaccinations for front line border workers,” says Godfreys Law Partner and employment law specialist Brad McDonald. “So, an employer can’t force an employee to take a vaccine. However, there is a but, as there always is in law!”.
The ‘but’ in this circumstance is that an employer could seek to compel an employee to take the vaccine if there was a specific provision in their employment agreement whereby they had given their consent to be vaccinated (or the job offer was made conditional upon vaccination) should the employer request it. Clearly the wording of any such clause will be all important because if the wording or language was loosely defined then an employee could argue the point.
COVID-19 vs Health and Safety
“Usually, conversations about whether the Bill of Rights or health and safety are more important are hypothetical. Employers are now being forced to consider these obligations, the risk to the worker refusing vaccination, and the risks to their wider workforce,” says Brad.
This issue is one that many businesses may have to grapple with. If you only consider those working at New Zealand’s border, plus managed isolation and quarantine facilities there are members of:
- The New Zealand Police;
- The New Zealand Army;
- Hotel staff;
- Maintenance workers;
- Cleaning contractors;
- Food delivery services; and
- Airline workers, just to name a few.
Each organisation will have their own employment agreements and challenges to overcome. Even amongst doctors, there are many different types of employment agreements among the various district health boards, so there will be no ‘one-size-fits-all solution’ to this problem.
Options for employers
“One option employers can consider, is shifting an employee refusing to be vaccinated to another role that’s not on the ‘front line’ or where there is less chance of transmission,” says Brad. “However, any move could not be seen as a disadvantage, so you would have to make sure you have fully and fairly consulted with that employee.
“It’s important to remember that morality and the law are not the same,” says Brad. “You can encourage employees to get vaccinated, and you can share why it’s important to get vaccinated. But, you can’t force an employee to get the vaccine, and at first look, you can’t offer an employee an ultimatum between the vaccine and their job. Any change in their employment, like redeployment to another role would have to be mutually agreed upon in writing.”
It’s still early days, and hundreds of thousands of New Zealanders are waiting for their COVID-19 vaccine. Because of the great risk to public health COVID-19 poses, employment lawyers and advocates are in discussions with the Ministry of Health and the Ministry of Business and Innovation to work out how to manage workers who refuse to get vaccinated.
“Hopefully, guidance will come through soon about what you can do about the COVID-19 vaccine, but as it stands, employment law is very clear about what you can’t do,” says Brad McDonald.
If you have any questions, or want to know more about your options around public health and employees, contact the employment law team at Godfreys Law on 03 366 7469.