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Covid Vaccinations - can my employer make me have one?

24 February 2021

Two questions:

  1. Can my employer force me to get the Covid-19 Vaccine – Unlikely, in most cases no
  2. Can I ask an applicant for a job if they are vaccinated – Yes

The starting point is that medical treatment in NZ requires informed consent - this includes vaccinations. In other words, the Government can’t force mandatory vaccinations on individuals as New Zealanders have the right to refuse medical treatment under the NZ Bill of Rights Act.

Employers however, have an obligation to provide a safe working environment.

Existing Employees

In my opinion, as a general comment, employers cannot make vaccinations a new condition of employment for existing employees without their agreement.

The interesting argument will arise if an employer claims that an unvaccinated worker poses such a significant health and safety risk that the employer could not reasonably allow the worker to continue working without being vaccinated. The argument would be that if the employee refuses to be vaccinated, the employer, if their direction was a reasonable and lawful one, might be able to dismiss the employee after considering redeployment and reasonable alternatives to dismissal.

This will be a difficult argument to make for most businesses which have operated safely since the Covid-19 pandemic was declared and for decades operated with unvaccinated employees in the midst of measles outbreaks and the like. However employers operating in high-risk sectors (for example aged care and hospitals) will have to weigh up the risk of employment grievances against their obligations to residents and patients.

New Employees

This is not straightforward. In my opinion, employers may impose reasonable conditions before employing a person, provided they do not discriminate on any of the prohibited grounds under the Human Rights Act. At pre-employment stage, an employer may ask whether you have proof of vaccination. If you have religious or ethical beliefs or a disability (which could include a medical condition) that prevents vaccination, an employer must consider whether your non-vaccination genuinely creates a health and safety risk.

An employer can lawfully refuse to employ you, if you are not vaccinated where your religious/ ethical beliefs cannot be accommodated without unreasonably disrupting the employer’s activities.

Similarly, in the case of disability, an employer can refuse to employ you, if the environment in which the duties are to be performed is such that because of your non-vaccination, there is a risk of harm to you or to others including the risk of infecting others with Covid-19 which the employer could not reduce to a normal level without unreasonable measures.

Employers could consider making proof of vaccination (providing vaccines are available) a term of employment agreements; and implementing appropriate workplace vaccination policies for high risk businesses.

If this all seems a bit theoretical, one of NZ’s largest retirement village aged care providers has recently announced it is making Covid-19 vaccinations compulsory for all new staff. For those current staff who object to the vaccination, extra measures are being put in place to mitigate the potential threat posed to residents and other staff – this includes donning full PPE.